One of the measures for sound political decision-making is whether a given decision is being attacked equally from both ideological extremes. The nomination of Elena Kagan to the Supreme Court is, evidently, a sound political decision by the President. Better to say, as sound as can be expected when it comes to Supreme Court nominations.
I was taken aback last night to hear the MSNBC duo of Keith Olbermann and Rachel Maddow comparing Kagan to foiled Bush-nominee Harriet Miers. Ouch! They were trying to make the point that Miers failed the arch-conservatives’ sniff test because she was untested. At least, that was Olbermann and Maddow’s take. It is true conservatives remembered Ronald Reagan’s promises that Sandra Day O’Connor would be pro-life. But, that misses the central point: The conservative objection to Miers was not just that her views were relatively unknown, it was that she lacked the stature which many conservative legal thinkers had attained. That stature was not simply the individual achievement of a Scalia or an Alito, it reflected years of effort and donations to fund conservative legal forums, the Federalist Society, conservative journals and even law schools. Having built that architecture to ensure crackerjack smart and substantive conservative jurists, the leadership of the conservative movement was horrified that President Bush, instead, went the route of nepotism. They brought down the Miers’ nomination.
Despite the pandering to the crazies on the Left that keep MSNBC prime-time in business, there will be no Miers-like objections to Kagan. This appointment is not about nepotism; Kagan is not the Obama family lawyer, she was the Dean of Harvard Law. And if the editors at The Nation howl that Kagan is not liberal enough, that certainly doesn’t hurt Obama and the Democrats going into the midterms. Obama did not appoint the liberal champion, Diane Wood, whose commitment to abortion rights is so extreme, the nomination would have sparked a firestorm. There will be, I am sure, protestations from the crazies on the Right too, but Kagan appears to be eminently qualified by learning, experience and temperament for the post to which she has been nominated. A
In the Post’s profile of Kagan, they noted that at Harvard she tried to make the school more student-friendly, installing a volleyball court, which is always a good idea, and offering free coffee, also a good idea. They also noted that she encouraged students to go into public service by raising the money to provide financial aid to those who went into public service after graduation. This is a great thing. An annual salary in public interest law is less than a year of tuition at Harvard so Kagan’s efforts to pay off the loans incurred for those who serve the public is essential if we want some of the best and the brightest to go into public service. By way of example, at the University of Connecticut Law School, only 2.4 percent of graduates go into public interest law and another 10.3 percent go to work in government agencies. Kagan gets high marks for encouraging her graduates to do so.
As I said above, this appointment is as good as it gets in this administration. I confess that even though I voted for President Obama with enthusiasm, the only hesitation I had was about his power to influence the judiciary. The man who said, in his career-launching speech at the 2004 Democratic National Convention in Boston, that America’s individualism co-exists with another impulse in the national psyche, the idea that "I am my brother’s keeper," that man who is now our president does not see, I fear, how the law and the Constitution must also embrace both impulses, the individualistic and the communal, in our national life.
I am no legal scholar. I do not know how you reconcile the autonomy-loving instincts of liberalism, as articulated most clearly in the Casey v. Planned Parenthood decision, with the "brother’s keeper" instinct of which Obama spoke. I have noted before that liberalism (in the classic, Lockean sense in which all Americans are liberals) still awaits the thinker who can do for liberalism what Aquinas did for Aristotle, create a synthesis between orthodox Christian thought and a philosophy whose roots are not Christian. I leave it for others to determine if, five hundred years into the modern, liberal project, if the lack of an Aquinas means no such synthesis is possible or that God only sends men of such monumental intelligence infrequently.
If Obama had nominated Diane Wood, this would be a difficult week for us pro-life Democrats. Her writings and decisions on abortion are truly indefensible. But, the President did not nominate Wood and while we have no reason to suspect that Kagan will be more or less pro-choice than most liberal jurists, abortion rights have not been central concerns in her professional career to date. As I noted elsewhere yesterday, it will be curious to see if those right-wingers who label Obama "the most pro-abortion president in history" will have the decency to acknowledge that, at least, he did not select the most pro-abortion nominee to the Court.