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May 11th, 2010 9:29 pm
The Age of the Blank Slate
Posted by Print

Following up on Ashton’s excellent post yesterday, one of the most salient facts about President Obama’s new Supreme Court nominee, Elena Kagan, is her total lack of a track record. This is not to indict Ms. Kagan for her lack of judicial experience – more than a third of the justices in the Supreme Court’s history have come from outside what Patrick Leahy refers to as the “judicial monastery” (a phrase too sterling to have been coined by a U.S. Senator — at least in the era since Daniel Patrick Moynihan’s passing).

Rather the issue is — apart from Harvard Law’s ROTC scandal while she served as dean– that Kagan doesn’t seem to have an observable opinion on anything. As CNN and New Yorker legal analyst Jeffrey Toobin — a friend of Kagan’s since law school — observed upon news that she would be the nominee:

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

What Toobin regards as personal anecdotage, however, the New York Times’ always interesting (and often perplexing) David Brooks sees as pathological. As he says in the coda of today’s column:

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

As Ashton mentioned yesterday, the same criticism could be equally applied to the pre-presidential Obama. But this isn’t just the provenance of the left. John Roberts presented much the same sort of blank slate prior to his elevation to the Court. And those already clamoring for a Marco Rubio presidential bid are running the same risk.

Consent of the governed is a meaningless concept when the governed aren’t told what they’re consenting to. If the Kagan nomination is a further indication that we’re living in an age of empty political vessels, the country will be worse off for it.

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