'Extraordinarily -- almost artistically -- careful'
SCOTUS Blog's Thomas Goldstein describes Elena Kagan as "extraordinarily — almost artistically — careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”
"Artistically careful." I love that. Sometimes one perfectly-chosen word can still bring me up short. But I digress: Like David Brooks, the people I've talked to about Kagan almost tear up when discussing her virtues. But it's all adjectives: "Brilliant," "effective," "tireless." No one describes her personal opinions, or even seems able to describe the issues that move her. The weirdest piece of commentary on Kagan is Jeffrey Toobin's blog post saying he's been close friends with her for 30 years "but her own views were and are something of a mystery."
To give this an absurd twist, it's actually easier to find anecdotes of Kagan going to the mat for positions she doesn't believe than for positions she does believe. Walter Dellinger, who led the Office of Legal Counsel under Clinton, recalled a time Kagan kept him up until one in the morning debating a legal point. The hours ticked by and Dellinger wouldn't budge. "At the end of that argument," Dellinger recalled, "she said she would've ruled as I did. But she believed the president deserved for her to give his position her best shot."
That's what a lawyer does, of course. And the consensus is that Kagan is an excellent lawyer. But it would be easier to put it all in context if there were some examples of Kagan arguing on her own behalf. What we're left with is a personality type that's generally associated with politicians rather than judges: Someone who manages to make a good impression on almost everyone while rarely revealing what they really think about the question at hand. Bill Clinton and Barack Obama both have this skill, the mark of which is that many people of many different opinions mistake a skilled form of listening and negotiating for a deep ideological sympathy.
David Brooks got at some of this in the final lines of his column today. "[Kagan] seems to be smart, impressive and honest," he wrote, "and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing." Like Brooks, I'm an opinionated writer, so I find Kagan's ideological ambiguity totally baffling. But I know enough people who act this way that I'd caution against believing it a calculated subterfuge. This is a personality type, and if it's uncommon among people who become Supreme Court judges, it's not uncommon among people who go into politics.
And make no mistake: Kagan, who has served in two White Houses, worked for one Senator, and served as dean of a fractious law school, has spent most of her professional life in politics. In some ways, the surprise is that she's never run for anything.
Photo credit: Larry Downing/Reuters.
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