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Unconvincing Endorsements of Kagan

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I guess she will be a judge in the same tradition as Louis Brandeis, in the same sense that Vincente Padilla is a “Dodgers Opening Day starter” in the tradition of  Sandy Koufax.

To elaborate a bit, while they were different men in a number of ways, one thing that united the three previous holders of the seat Kagan will occupy was tough-mindedness and idiosyncracy.   Many of their most notable opinions were dissents and concurrences: for example, Brandeis in the free speech cases and Olmstead, Douglas in Poe v. Ullman, Adderly, and Doe v. Bolton, and Stevens in Bush v. Gore and Citizens United.    In this respect, they couldn’t be much more different than Kagan, whose renown is based on being a world-class ass-kisser consensus-builder.

Of course, if you think that Supreme Court justices can be managed in the way that a dean can manage their faculty, this can be seen as a feature; I find the idea pretty silly.   Even if you lend more credence to this than I do, however, there’s a problem: the failure to remember that networking is a two-way process.   Why would we assume that Kagan will be influencing Kennedy and Roberts, rather than vice versa?    One thing you can definitely say about Brandeis, Douglas, and Stevens is that they’re weren’t susceptible to manipulation by conservatives seeking votes…

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  • patrick

    Obama values the process of consensus building highly. I think his presidency is often less about the policy (although obviously he does policy much better than his predecessor), than how we get to that policy. He feels he must “fix” the process of dialogue that he feels is necessary for this country to move forward on any front, not just the particular policy outcomes he is looking for at a given moment.
    But the problem of course, as you point out, is that dialogue requires participation by both sides.
    And besides, I think Obama is pretty conservative at heart and the middle of the road Kagan is close to his own sense of what a good judge is than the man she is replacing.

  • Notorious P.A.T.

    “Of course, if you think that Supreme Court justices can be managed in the way that a dean can manage their faculty”

    That’s what we keep hearing. Let’s say she can influence other judges; why should we think she will influence them in the correct direction? Evidence of that is what has been–quite significantly–withheld from us.

  • Ed

    I imagine that at his age Kennedy knows what he knows and thinks what he thinks, and the networking efforts of a time-serving schmoozer are unlikely to affect him very much, unless they get on his nerves. We’ll see.

    • My thoughts exactly. Arguing with older people, especially people that can point to a lifetime of achievement (such as, say, becoming a Supreme Court justice) may be one of the most futile exercises I can think of. They know what they know and what they know has served them well. At best, you can simply disengage from the argument before anyone gets embarrassed. At worst, you can, through sloppy logic or plain outright misinterpretation, reinforce what the older already thinks.

      In short, there’s nothing a pragmatic consensus-building can do to get Roberts to vote of the side of someone whose Miranda rights have been violated. That’s simply not in the bag, and thus the only compelling argument for Kagan is moot.

  • mds

    Why would we assume that Kagan will be influencing Kennedy and Roberts, rather than vice versa?

    Eh, Cthulu knows I’ve bee grouchy about the Kagan pick, but I think the vice-versa has less merit of the two. Though as usual I have little of substance to base it on, I don’t see Ms. Kagan being particularly swayed by either of the above justices. Meanwhile, Roberts is a solid down-the-line right-wing authoritarian on anything that matters, so isn’t going to be budged by lollipops. On the other hand, a Harvard dean has probably had some experience in handling intellectual lightweights with an inflated sense of their own merit, so Kagan might actually be able to influence Kennedy. But I’m not actually worried that Kagan will be rudderless and therefore malleable by the Court’s right wing, so much as that she will rule to Stevens’ right entirely on her own.

    And if the argument really were “How to bring conservative justices around to your way of thinking,” we’d be back to picking Judge Wood, despite the decrepitude that makes her unlikely to live out the year.

    • Scott Lemieux

      I’m not actually worried that Kagan will be rudderless and therefore malleable by the Court’s right wing

      I’m not either; I’m just saying that if you believe in that consensus-building stuff, logically you can’t assume it’s a one-way street.

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