Elena Kagan, Barack Obama, and the American Establishment
This article addresses what should be a puzzling question: Why did Barack Obama nominate Elena Kagan to the Supreme Court? Not only has Kagan never been a judge, but, far more problematically, she has over the course of a 25-year legal and political career taken almost no public positions on any significant legal or political questions. This latter fact would, at first glance, seem to disqualify her from consideration for a lifetime appointment to one of America’s most powerful political institutions. That it has not tells us a great deal about deep-seated cultural myths regarding the possibility of separating law from politics, and about the elite institutions that have molded Obama, Kagan, and so many other members of America’s contemporary legal, political, and economic establishment. Ultimately, in one sense Kagan remains, on the eve of her confirmation by the Senate, as much of a blank slate as ever. Yet in another we, like Barack Obama, can venture a good guess regarding what sort of Supreme Court justice she will make. That we can do so reflects both the cultural and ideological power wielded by the elite institutions that are producing the contemporary American establishment, and the relatively narrow range of political views those institutions generate among those who go on to become part of that establishment.
The Elena Kagan story, as presented by both the White House and her supporters throughout the legal world, is that of a brilliant academic and administrative career, whose trajectory has been ever-upward, until it has placed her on the doorstep of the Supreme Court a few months after her 50th birthday. This story is actually a serious oversimplification: Kagan has gotten to her present position despite a series of early career reversals, which culminated in the loss of her position on the University of Chicago faculty, and a brief period in which she was almost frantically scrambling for a job. Her rather abrupt transformation from a soon-to-be unemployed former law professor to dean of the Harvard Law School, and her subsequent ambiguous track record in that position, is a tale that reveals academic politics at their most byzantine. The real story, in other words, is more interesting than the narrative being put forth for public consumption. In some ways it makes Kagan a more attractive figure than the almost robotic paragon of flawless professional advancement concocted by the public relations machine. Over the last few weeks I’ve spoken to a number of former colleagues of Kagan’s in Chicago, Washington, and Cambridge. On the basis of those conversations, as well as the public record, the following story emerges.*
