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'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.

By Ezra Klein  |  May 11, 2010; 4:00 PM ET
Categories:  Legal  
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Next: 'Citizens United was a shot across the bow'


Wasn't one of the big complaints about the Citizen's United decision that the Justices ignored the political realities of campaign contributions, and that we needed some judges who had a pragmatic understanding of the effects of that sort?

Posted by: sterlinm | May 11, 2010 4:39 PM | Report abuse

From Klein:

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.

One can also make the case that she's spent the past 30 years running for the position for which she's been nominated for now.

Posted by: GregHao | May 11, 2010 4:41 PM | Report abuse

I have actually met a number of lawyers who are exactly this way. They will argue tenaciously as an advocate on behalf of a client after they have left no stone unturned in researching a topic, and they are disinclined to voluntarily offer (or even form) a personal opinion without having gone through a similar level of exhaustive analysis. These are highly analytical personality types who absolutely do not want to ever be proven wrong.

Some politicians, on the other hand, are likely to adopt and promote a position before giving it much personal thought. I don't see Kagan as having the personality of a politician, but I am sure Ezra knows that species a lot better than I do.

Posted by: Patrick_M | May 11, 2010 4:46 PM | Report abuse

Patrick, I'm not sure there's really a difference, though. Maybe in the preparation, but not in the motives of each group ... to me, both the "pure" lawyer and the politician are empty vehicles pursuing an ends that doesn't originate from them.

It's the ideological types that the public loves. It's we make movies about, whether it's Mr. Smith or Atticus Finch. The "professionals" who give a voice to their client at all costs -- whether its Arlen Specter or a lawyer defending an accused murder -- make people really uncomfortable.

She was absolutely a "professional" while working as a Solicitor General, representing the administration. But what about those papers and whatnot? Having no passions in her personal life creeps me out. It would not be good if only the secretive, careful people could now be elected to the court.

Posted by: Chris_ | May 11, 2010 5:09 PM | Report abuse

"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."

Other than for the Supreme Court, for the past few decades...

Posted by: NS12345 | May 11, 2010 5:11 PM | Report abuse


I don't think Kagan is an empty vehicle who is devoid of opinions; the lawyers who remind me of her certainly had views on politics and society. They just feel uncomfortable conversing about their personal views, and hold them as private.

David Souter was not Atticus Finch, but he was a pretty fine Justice. I know that Democrats crave a liberal version of Scalia, but to expect that sort of flamboyant nomination from Barack Obama is to misread Obama's personality.

Posted by: Patrick_M | May 11, 2010 5:19 PM | Report abuse

Most politicians seem to enjoy being the center of attention. Most it seems are extreme extroverts with the range of half-way decent actors/trial attorneys.

The sense that Kagan gives is that she does not seek out attention. She's ambitious, but she also seems to have a pretty grounded sense of her limits. Given time she could probably win over a lot of people based on her track record.

However, with many politicians its about closing the sale in a 2 minute pitch. It doesn't hurt either if the person is somewhat more telegenic than the typical schmuck. At Harvard they might give some extra points for intellectual heft, without putting too much weight on appearance. In most popular elections the equation is reversed.

Posted by: JPRS | May 11, 2010 5:32 PM | Report abuse

I'm still baffled that describing attributes "not uncommon among people who go into politics," recalling that a judicial candidate "has spent most of her professional life in politics," and expressing surprise "that she's never run for anything" are considered ways to honor a nominee for the Supreme Court.

Arguably, the fact that a personal position is shunned in favor of a popular position might be beneficial; however, such behavior is beneficial only if the popular popular position conforms to the Constitution. As an interesting example, consider that denying inter-racial marriage privileges was extremely (almost universally) popular and many Universities (Harvard key among them) advocated such denial based both on what they termed scientific grounds (race preservation) and
on what they termed legal grounds (lack of federal authority to regulate marriage) -- in its 1960's-era ruling on the matter, the Court took a Scalia-esque turn, using first principles of justice and conscience to reach an unpopular yet simple, non-scientific conclusion.

So far, both parties are reaching the conclusion that Kagan can very cleverly conceal her ability to manipulate and be manipulated, making her the best political pawn (and potential lobby/bribe-receiver) that either side could ever want.

How are her judicial skills? Have many of her rulings been reversed for valid reasons? Oops... I almost forgot she's never actually been a judge before.

Again, I'm not condemning Kagan, I'm condemning the same citizen behavior that led us to ignore the warning signs of the financial industry crisis, the offshore oil crisis, the PPACA debt crisis, etc.

Posted by: rmgregory | May 11, 2010 5:41 PM | Report abuse

Well, it wasn't an either/or proposition -- more of a spectrum. There's been lots of hand-wringing about the unwillingness of Obama to consider nominating a "liberal Scalia," but I think that ignores that there seems to be the same attitude on the right lately. No one wants a huge fight, but each side wants a "stealth candidate." That's no good for transparency, for public discourse, or for future aspiring SC justices.

Posted by: Chris_ | May 11, 2010 5:41 PM | Report abuse

" I find Kagan's ideological ambiguity totally baffling."

Consider that there is a difference between being an advocate and being a defender, particularly as a lawyer.

Ms. Kagan's background suggests that she is the latter, one who is assigned points or principles to explain and defend, whether or not she agrees or disagrees with them. This is very different from being one who advocates a principle or position because they are what she personally believes.

In being a defender Ms. Kagan, I think wisely, kept her own ideological beliefs in the background, and presented her conclusions based on the subject's merits, rather than present conclusions based mostly on her ideological preference (cf. Judge Scalia.)

In other words, she seemed to do an excellent job in every instance without alienating anyone unnecessarily with political red flags, and impressing others with her acumen. Not bad.

Given the current makeup of the Court, I think I'd rather have a liberal who can ably defend an idea and perhaps sway others to her side, than an advocate who's advocacy ends constantly in defeat. I think the President thinks that too.

Posted by: tomcammarata | May 11, 2010 5:43 PM | Report abuse

"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.”

Remember that Clarence Thomas had never discussed Roe v. Wade with anyone.

Posted by: tomtildrum | May 11, 2010 5:44 PM | Report abuse

Based on that photo, she seems to have long arms.

Posted by: bdballard | May 11, 2010 6:00 PM | Report abuse

Someone with apparently liberal politics but who can't be nailed down on particular issues strikes me as a strong liberal with supreme court aspirations. The justice we've all been waiting for. But maybe she's just a Rorschach test.

Posted by: zosima | May 11, 2010 10:54 PM | Report abuse

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