My Pileus colleague Marcus Cole argued a few weeks ago that conservatives and libertarians should not be so unhappy with Supreme Court Justice nominee Elena Kagan, since it could have been “much worse.” With a left-liberal Democrat in the White House and a Congress controlled by the Democrats, who knows, Marcus asked, what enormity we could have gotten.
I take his point, but with all due respect to my esteemed colleague, that is not exactly setting the bar high. There are, after all, indefinitely many worse choices for almost any office. It does not follow from that that the candidate before us is the best one, or even a good one—all that follows is that she is less bad than some others we might imagine.
It is true that, as many have lamented, we do not possess much direct evidence about what Kagan’s judicial philosophy would be. She has no experience as a judge, after all, and has very little by way of scholarly publications. Indeed, this has led some to ask whether she is even qualified to sit on the highest court in the land.
The confirmation hearings thus far have also revealed little. Some have suggested that her wiliness at not giving very much information in her answers intimates a duplicitousness in her character. Perhaps. It might also intimate a cleverness: She was, after all, a student of the Bork hearings—she said in 1997 that they were “great,” the “best thing that ever happened to constitutional democracy”—so she well knows how important it is not to give ammunition to the other side.
But there is some indirect evidence. She has served as Dean of Harvard Law School. One does not become dean of the law school at Harvard without possessing at least these three characteristics: one must be very smart, one must be very clever, and one must be very liberal. All three of those characteristics are overrepresented in academia, and the more prestigious an institution is, the more likely its members are to be (a) politically homogeneous and (b) clustered ever further leftward on the political spectrum.
I think it is safe to assume that Kagan has all three of those characteristics in spades. Her smarts got her foot in the door in the high echelons of academia, and her cleverness allowed her to climb the ladder quickly while managing to offend few. Given the rarefied political environment in which she has ascended, however, I think the reasonable assumption is that she will not have been able to succeed as she has unless she also shares political sensibilities that are significantly further left than where the center in the United States is.
While it is no doubt true, then, that there are yet more radical left-wing academics that President Obama might have chosen, I think it is a mistake to think that Kagan herself will not be quite liberal, and indeed one of the most liberal justices on the Supreme Court for the next several decades.