FOR ELENA KAGAN to emerge as a great Supreme Court justice, she will have to lay out a more expansive vision of the law than she has shown so far. Kagan has outstanding legal credentials, but so far lacks the passion of a crusader. She has a first-class judicial temperament, but so far lacks experience as a judge. She aspires to be a leader, but so far lacks a discernible agenda. Her tenure as dean of Harvard Law School suggests she’s most comfortable building consensus between ideological factions.
Those are the salient points of Kagan’s nomination to the Supreme Court. So let’s stipulate: She is a highly qualified nominee. There is no reason yet apparent why she should not be confirmed easily.
Even so, President Obama’s decision to nominate his 50-year-old solicitor general felt more cautious than adventurous. That sense of anticlimax is less a reflection on Kagan than on the process itself.
In the 19th century, Supreme Court nominations were sometimes granted as political payoffs. In the smoke-filled rooms where presidential nominations were settled, Supreme Court seats were bartered as well. Candidates would have to meet a high threshold of legal ability, but beyond that there were few established credentials. And yet from that relatively unpromising recipe, some great justices emerged.
In the decades since the 1987 battle over Robert Bork’s nomination, politics has played a different role. Presidents have sought nominees who can’t be easily attacked, and won’t provoke furious opposition. A certain ideological fuzziness helps, especially if a nominee lacks, as Kagan does, the claim to be the first or only of her ethnic group or race or gender. And yet some admirable justices have emerged from this dubious recipe as well.
It was obvious yesterday why Obama and other recent presidents have chosen nominees for their ability to withstand furious, sometimes ridiculous scrutiny. Within minutes of her nomination, Kagan’s support of Thurgood Marshall’s claim that the Constitution was flawed as originally written — a reference to slavery — was being bandied about (by the African-American chairman of the Republican National Committee, no less!) as a potential scandal.
It’s unlikely to stick. Kagan has been carefully vetted. As a scholar aspiring to the high court, she may well have tailored her own writings with this moment in mind. If so, it’s a sad comment on the situation, but not necessarily on her. A woman of demonstrated ability, Kagan is still a mystery. From her résumé, it’s clear she has the potential to be a distinguished justice. Unfortunately, the confirmation process is unlikely to provide enough of a clue.