We all know the tease. It’s late in the evening and you’ve flopped down in the big chair to catch the late local News at Eleven, because it’s been a hard complex day and you just want to find out what’s been going on, and maybe who won which game, and what the weather will be like in the morning when you work your way back to the office one more time. And you expect vapid bubble-heads to tell you all that. Local television news is like that. The insightful, thorough and precise folks are quickly gone, off to New York or Washington or Atlanta, to the national network where they become what they call respected. Those who remain are those not good enough for that, but pretty enough, and articulate enough, or articulate enough for minor human interest stories, often involving cute puppies – and articulate enough for minor crimes and a few house fires and, out here, the usual car chase. But they’re stuck, in spite of whatever dreams they once had going nowhere now, and you can see the existential despair on their faces. Of course you’re stuck too, with them. Life is like that. Few get what they think they deserve.
But it’s the opening tease that gets you. Tonight, learn what major freeway will be closed for months, making the city a mess! So you sit though a few commercials and wait for that. But it’s not in the next bloc of silly stories. So you sit though a few more commercials and wait for it. But the sports come and go, and then the weather. Then, as the half-hour comes to an end, and after another bloc of commercials, they get to the freeway story – and it’s the 91 out in Riverside, where you haven’t been in ten years. Damn. But they did get you to sit through a few dozen thirty-second spots, which was the point of the tease after all. It’s that, or they’re taking out their anger at their broken dreams of journalistic fame and fortune on the world in the classic passive-aggressive way – if they’re not happy no one will be.
But that does not make the tease any more palatable. You’ve lost twenty-eight minutes of your life, twenty-eight minutes you’ll never get back. At least when you go to the movies, the trailers – what used to be called Previews of Coming Attractions and don’t trail anything at all – let you know what’s going to be in some new movie, the Bourne Redundancy or whatever – although you sometimes sense that the good stuff you’re seeing up there in the preview may be the only good stuff in the movie. But at least you get something. People want to know what they’re getting, and if they’re told they’ll be getting this that or the other thing they don’t want to be told to wait, you’ll see later, and you’ll be happy and in the know – later, sometime or other.
And thus we have Obama’s Supreme Court nominee, Elena Kagan – and we’re told she is just right for the job. But don’t ask why. You’ll see she is. She seems qualified, but oddly inscrutable. She’s not talking much about judicial philosophy, on what she thinks a judge should do, or not do. She’s not talking much at all, and neither is Obama.
This leaves people befuddled. People want to know what they’re getting, as with the movie trailer, or what important thing is happening, as with that elusive freeway story. This seems quite a tease. Wait until she’s on the bench.
But of course people aren’t quite sure what they want. John Cole put together this list of what we’ve learned so far about “What It Takes to Be a Justice.” And it is amusing.
He reads this from the New York Times’ David Brooks and concludes this – “No boring career oriented types need apply. Try to squeeze in some college era hi-jinks to liven up that vita – maybe a possession bust as an undergrad, some racy Facebook pictures, or a term paper supportive of Mao.”
And given one pundit being appalled that Kagan didn’t get her driver’s license until she was in her late twenties Cole summarizes that view – “Ed Whelan demands a valid driver’s license. And there will be a proficiency test to demonstrate ‘mastery’ of the subject.”
And he points out that Andrew Sullivan would like proof one way or another of her sexual orientation, even if Jeffrey Toobin and Eliot Spitzer say she’s not gay, and even if she were, that has little to do with anything at all. And there’s the argument that Obama is always picking women, and that’s not fair to white men or something, and there’s David Bernstein saying he’s tired of Ivy Leaguers, or as Cole puts it, “so come on down, Heritage Law students!”
And of course Republicans are requiring a history of judicial experience – even if they hate that sort of thing. And is the court packed with too many New Yorkers? What about Real Americans? Of course the less said about Michael Steele demanding that she not question the Constitutional Right to the practice of slavery the better.
And Lynn Sweet would like a decent batting stance. Cole – “And no, I’m not kidding. According to recent debates, proof of a good baseball stance could also serve as verification of your sexual status, as required by Sullivan…” And then there’s another long item from Sullivan demanding a record of taking risks and failing to prove a record of life experience – she seems to have never failed at anything so she must be completely out of touch with the real world.
Of course all this is what happens when there’s not much to go on. Will that new movie be any good? There wasn’t much to go on in the preview. You don’t trust the tease.
Slate’s Dahlia Lithwick discusses that Tease Problem in this item:
Now, pundits have launched themselves into their CSI-worthy project of sorting through tiny filaments of evidence for her true ideological views. With no judicial record to pore over, and some of the wonkiest law-review articles ever penned to her credit, Kagan has mastered the fine art of nearly perfect ideological inscrutability. Even Jeffrey Toobin, her law school study partner, has virtually no idea what she really believes. That only makes us more determined to sift through the dry-cleaning slips and the Post-it notes to try to guess at who the real Elena Kagan might be. And since she has been hard to know, we struggle to find someone else we might compare her to. Paul Campos, a law professor at the University of Colorado, has (fairly ridiculously) compared Kagan to Harriet Miers. Andrew Cohen has compared her to Chief Justice John Roberts.
So no one knows much of anything, as the pickings are slim, and what pickings there are seem ambiguous:
A letter Kagan co-authored in 2005 condemning a court-stripping proposal for suspected terrorists at Guantanamo Bay will hearten the left. Her statement at her 2009 confirmation hearing that the president could detain enemy combatants without trial will make liberals very nervous. Kagan’s refusal to find a right to same sex-marriage in the Constitution may provide some small comfort to conservatives. But the fact that she was strongly and vocally opposed to military recruitment at Harvard Law School until the courts forced her to rescind her policy suggests a willingness to fight for liberal causes. We will debate the ambiguous evidence of Kagan’s views on executive power for weeks without knowing much of anything.
Lithwick cites Kagan’s 2001 Harvard law-review article on a version of the unitary executive theory. She says you’ll want to commit that to memory – it may be one of the few items of substance:
It’s not quite that Kagan offers something for everybody. It’s more that she offers nothing, so there is something for everybody to wail about.
Lithwick then outlines the problem here:
What nobody disputes about Kagan is that she is terrifically intelligent, an able manager, ambitious, and well-liked and that she was all that and a wheel of brie when it came to sorting out the problems she inherited as dean of Harvard Law School. She ran the most successful fundraising campaign in law-school history and attracted important right-wing thinkers to campus. Nobody (beyond Glenn Beck) has ever accused Kagan of being a liberal firebrand or a wild-eyed idealist. And while some of her supporters suggest that she may prove far more liberal than anyone expected, another Kagan fan told Nina Totenberg this past weekend that “Elena is the single most competitive and most inscrutable person I have ever known.”
But one thing is clear. She’s just like Obama:
She has staked her professional career on reaching across the aisle and showing respect for all viewpoints. It’s one of the reasons her greatest fans include Ted Olson and Charles Fried. And that’s why the interesting question is how serious the GOP effort to scuttle her nomination will be. Yes, they are already muttering about her inexperience and her rampant Harvard-ness. But ultimately, how do you wage an epic world war over a constitutional sphinx?
If you remember Hillary Clinton and John McCain screaming this and that about Obama being all radical and socialist and whatever, and Obama being all cool and refusing to say what he was – not Bill Ayers or Jeremiah Wright but just someone who wanted to get people together to solve the problems of the day – you see the parallel. Was Obama a damned socialist, and is Kagan gay? Do you want to talk about that, or do you want to solve the problems at hand?
Lithwick points out that some argue Obama was looking for someone who could sway the other justices, and points to CBS legal correspondent Jan Crawford saying this about Kagan – “She’s very engaging very challenging, she’s quite dynamic in her personality, and you see that when she’s arguing cases before the Supreme Court. The justices really like her – you should see Justice Scalia (obviously a conservative) and Kagan going back and forth.”
But Lithwick wonders about that, and as Lithwick’s beat is the Supreme Court, and Lithwick is there for every oral argument, Lithwick has to say what she has seen:
I confess that I haven’t always seen Kagan as enormously successful with the court’s conservative wing, although she has always been conversational and collegial with them. That’s largely because one has to argue before the court dozens of times to become truly expert at it, and Kagan’s first oral argument at the high court last fall was also her first oral argument, period. In her total of six arguments at the Supreme Court, some of us have seen less playful banter than all out friction, most notably between Kagan and the chief justice.
And Lithwick is not at all sure that a certain excellence at oral argument always predicts judicial excellence, but maybe her role as solicitor general matters a great deal more:
Just as some have argued that Kagan’s lack of important academic scholarship makes her better suited for the court, there is a strong argument to be made that Kagan’s understated, even mellow, outings as solicitor general show that she will approach the job of Supreme Court justice just as Obama would wish: open-minded, scrupulously fair, and always willing to concede error (so much so that she has sometimes been faulted for giving too much ground on Citizens United). She is always measured and polite. In fact, if you listen to her oral argument in the Citizens United case, you may well be struck by the fact that it’s Roberts who plays the role of oral advocate while Kagan seems to be striving for cautious centrism.
Six appearances before the Supreme Court don’t tell us much about an advocate’s ideology. Kagan was representing the Obama administration and defending federal statutes. But to the extent she betrayed her own judicial temperament in these outings, Kagan’s performances reveal a good deal about the kind of justice she may be: careful, narrow, and mild.
Neither side seems to like careful, narrow, and mild, of course. But we may need to get used to it, as Lithwick goes on to argue that there are “two key prongs” to the president’s judicial vision – “centrism and hating on the Roberts court.” And those are not easy to reconcile:
Kagan, noted Obama, is a proponent of bipartisanship, of “understanding before she disagrees” and of seeking “common ground.” So far so good – but then the president tried to make her the face of opposition to the Citizens United decision, a decision so staggeringly unpopular that Obama has been campaigning against it since January. Introducing America to Kagan today, the president tried to turn her loss in that case into a big win for populism: “During her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations,” Obama said, adding, “In the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.”
It’s a fine needle the president is trying to thread: positioning Kagan as a bipartisan consensus-builder who is also going to knock some sense into the right-wing corporate ideologues on the court. Adam Liptak has already detailed how Kagan actually abandoned Obama’s legal theory of Citizens United (that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens”) by the time she argued the case.
What to make of all this? She’s an unknown. And it feels like some sort of tease is going on.
On the other hand, an in a later item in Slate, Lithwick notes we’re learning a lot about Obama’s own judicial philosophy:
Those of us who watched last year’s battle over a Supreme Court nominee bog down in a cartoonish fight between “umpires” and “empathy” had hoped to hear the president express a clearly defined vision for the court last year. It never really came. But combing through various speeches, interviews, his comments about Citizens United in the State of the Union speech, and then his nomination of Kagan, one conclusion is all but certain: Obama won’t be mucking up the courts with liberal fire-breathers any time soon.
Obama seems to think that the courts may not be all that important:
For one thing, we know that Obama is opposed to judicial activism, no matter what the flavor. He wrote about this in The Audacity of Hope, making clear that liberals had become too dependent on the judicial branch to solve their political problems: “In our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy,” he wrote. “Elections ultimately meant something. … Instead of relying on Senate procedures, there was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.” In a piece last fall about Obama’s judicial philosophy, the New Yorker’s Jeffrey Toobin amplified this point and argued that the reason Obama wasn’t packing the federal courts with hard-core liberal judges was that “Obama’s jurisprudence may rest less on any legal theory or nomenclature than on a more primal political skill – the ability to keep winning elections.”
Maybe people make too much of the courts:
In remarks last month he sent many liberals into a tailspin when he explained: “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically … and in the ’60s and ’70s, the feeling was – is that liberals were guilty of that kind of approach.”
Obama has made this point before – that the moment for Warren Court liberalism has come and blessedly gone. In a 2008 interview with the Detroit Free Press, Obama mused that “the Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.” In other words, segregation was a specific problem that required strong liberal “activists.” But we don’t have those sorts of logjams anymore.
This is the opposite of FDR trying to pack the court back in the thirties. Obama seems to believe in the political process – we can work things out. Things get to the Supreme Court only when they must, and they really shouldn’t need to. But sometimes, if people are being jerks, the political process fails, and if that happens – and it shouldn’t – then the Supreme Court matters, but only then:
This leads us to Obama’s other strong belief: that courts still have a central role in protecting the downtrodden. When Souter retired, the president said he wanted to replace him with a justice who “recognizes that one of the roles of the courts is to protect people who don’t have a voice. That’s the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up…”
He has further refined that message this year with his round of attacks on the Roberts Court for its decision in the Citizens United case. When Stevens stepped down, Obama explained that his model for a replacement justice was someone who, “like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
But then you have to square Obama’s vision of a court that protects minorities with a court that doesn’t intrude on the business of the elected branches. There are a lot of jerks in the elected branches. And thanks to Bush, the lower courts are jam-packed now with the deeply ideological committed right-wing guys. And everyone, on both sides knows things are broken, and jerks abound and multiply, and most everyone sees the Supreme Court as the answer to everything. Obama seems to think it doesn’t have to be that way. It’s almost as if, to him, no one is a jerk, really – you just have to understand them and work with them. You appeal to their better angels and all that sort of thing. That’s cool – or foolish beyond belief.
But if Obama was thinking this way, this nomination was not a tease at all:
Obama’s hopes and dreams for the federal courts were anticipated last fall by Richard Epstein, the interim dean at the University of Chicago Law School when Obama was teaching there. “Obama has nothing much he wants from the courts,” Epstein told Toobin. “He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That’s it.”
It was no big deal, and Lithwick concludes with this:
That sounds less like a judicial philosophy than an end game. We may learn something more about the president’s grand unified view of the judiciary in the coming weeks. Or we may come to learn that there just isn’t one. Like liberal jurisprudence itself, the age of overarching liberal judicial philosophy may have come and gone.
And maybe the worst tease is when there is no tease at all. You watched the news and there was no big story. And you go off to bed and got some sleep.