Brush With Greatness: Elena Elenadana Kagan

Unless every news outlet on the Internets has it wrong, once again President Obama is nominating a Princeton alumna to the Supreme Court.  Unlike Sonia Sotomayor, this time I actually knew her.

Elena Kagan was a year behind me, and I worked with her at The Daily Princetonian.  Every night a small rotating team of Prince reporters and editors would “work press” — oversee the production of the paper throughout the evening and sometimes into the early morning.  We would proofread, rewrite headlines and cut stories to make them fit, and when she and I worked press together or when I edited her stories, I briefly would have been her supervisor.  I don’t recall any such occasion, but I have no doubt that my wisdom and dedicated professionalism helped inspire… ah, nevermind.

Each year the student journalists would elect a member of the next year’s graduating class to serve as Chairman, and that person would oversee the paper for the coming year.  Elections typically went through several ballots and into the night.  My outgoing class ran the election for her incoming class, and Elena came in second (a lot better than I had fared the year before).  She arrived at the party after the balloting looking disappointed but composed, and I was impressed by her quiet dignity.

She was a hard-working, serious person.  A new TV show called Saturday Night Live was a massive hit on college campuses across the nation, and the late Gilda Radner played a recurring character called Roseanne Rosannadanna, a loopy newscaster.  For reasons lost in the mists of time, a few of us started referring to her as Elena Elenadana Kagan.  I remember being startled to learn that she had never watched SNL and had no idea what we were talking about.

I’ve had no contact with her since I graduated. I’d like to be able to say that I knew she was destined for great things, but I had no such insight.  I will say that years ago, when I read she had been named Dean of Harvard Law School, that I was impressed but not particularly surprised.

Before he died in 2008 at the age of 111, a man from my church was the oldest living alumnus of both Rutgers University and Harvard Law School.  At his funeral I learned that Harvard had honored him, and his family was surprised and grateful at how much time Dean Kagan spent talking with them and making them welcome.

Unlike Sotomayor, Kagan has no paper trail of judicial activism.  Her politics undoubtedly are to the left of mine, but that would be the case with any Obama nominee, and I see no reason to oppose her nomination (much to her relief, I’m sure).  Besides, since I didn’t know her classmate Eliot Spitzer, she’ll become the most prominent person about whom I can say “I knew her when” — and how cool is that?

For Obama, Empathy Trumps the Rule of Law

There's a reason for the blindfold

There's a reason for the blindfold

Sonia Sotomayor likely will become a reliably liberal vote on the Supreme Court, replacing the reliably liberal David Souter.  Despite my distaste for identity politics and legislation from the bench, I don’t see this as a disaster — nor do many of the conservative columnists I’ve read.

After describing one of Sotomayor’s decisions, James Taranto writes that he approves of:

“Sotomayor’s instinct to err on the side of protecting speech–an instinct that was a hallmark of “liberal” jurisprudence in the days of the Warren court but really is not anymore. …

If President Obama’s first nominee turns out to be an old-style liberal with a reverence for free speech, the country could have done a lot worse.

Krauthammer notes that “a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.” Rather than try to sink the nomination, he thinks Republicans should use it as a platform for discussing judicial philosophy, and the proper role for “empathy” in government.

Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy — and unequivocally for the principle of blind justice.

Empathy is a vital virtue to be exercised in private life — through charity, respect and loving kindness — and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets are built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

Obama and Sotomayor draw on the “richness of her experiences” and concern for judicial results to favor one American story, one disadvantaged background, over another. The refutation lies in the very oath Sotomayor must take when she ascends to the Supreme Court: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. . . . So help me God.”

The day after the nomination was announced, the Wall Street Journal editorialized:

As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor’s Constitutional principles are as free-form as they seem from her record.

At the Heritage Foundation, Robert Alt illustrates the limitations of empathy as a legal standard:

My late constitutional law professor once offered the following hypothetical about a fishing dispute that made its way to court. On one side were Native Americans; on the other, environmentalists. After a pregnant pause, he mused: “What’s a liberal to do?” Were he to teach the class today, he might well have asked, “What’s an empathetic judge to do?”

As this hypothetical illustrates, empathy, the factor by which President Obama claims that he selects his judicial nominees, is highly subjective, and provides little direction for judges. In some cases, all of the parties are sympathetic. In other cases, none are. In still other cases, the law may be unambiguously on the side of a party who is less sympathetic.

If empathy is the guiding principle, how is a judge to decide these cases? And how do we separate empathy from personal bias?

Here, then, is a modest proposal: In choosing nominees, President Obama should seek judges who would apply the Constitution and the laws as they are written, and interpret them consistent with their plain and original meaning.

Based on some of the available evidence, that doesn’t appear to describe Judge Sotomayor. Also at the Heritage Foundation, Deborah O’Malley notes that Obama pays lip service to rule of law — but actions speak louder than words:

Obama says that an important quality in a nominee is the recognition of the limits of the judicial role. Thus judges should “interpret, not make law” and approach decisions with a “commitment to impartial justice.” With these words, it’s curious he’d select a nominee who disagrees.

Judge Sotomayor has made several public statements denouncing — and even lightly mocking — the idea that courts should be impartial and shouldn’t engage in policymaking.

I join the Journal in hoping that Republicans will keep their criticism focused on Judge Sotomayor’s rulings and statements, and not descend into ad hominem attacks.  I think Thomas Sowell overreaches and does his cause no favor by referring to Sotomayor as “this dangerous woman.”

Sotomayor: Identity Politics and Legislation from the Bench

I’m generally opposed to the idea of judges legislating from the bench — but I’m not an absolutist about it.  Brown v. Board of Education could be described as legislating from the bench, but I think the ruling was necessary and appropriate, and in fact a proud moment in American history.  Over the following decades, judges not only legislated from the bench in support of Brown, they in some cases took over the administration of school districts to enforce integration.  There might be valid arguments against this busing order or that forced redistricting, but in general I think the judiciary was taking (appropriately) extraordinary steps to overcome extraordinary defiance by segregationists.

Roe v. Wade is more complicated for me. I’m in the Clintonian “safe, legal and rare” camp, generally opposing most restrictions on access to abortion — so in that regard, Roe v. Wade has brought America about to where I want it to be.  But I wish we had gotten here through legislation rather than through judicial activism, and the Roe decision is utterly indefensible from a separation of powers perspective.

Via GayPatriot, the half-minute video above tells you all you need to know provides troubling evidence about where Supreme Court nominee Sonia Sotomayor stands on judicial activism:  She thinks the appeals courts are “where policy is made.”  She acknowledges that the Framers didn’t see it that way, but she clearly is untroubled by the idea of judges in policy-making roles.

As for identity politics, Obama apparently only considered women for the nomination.  I was rooting for a different Princeton graduate — rather than Sonia Sotomayor ’76, I was hoping for Elena Kagan ’81, with whom I worked on The Daily Princetonian before she went off to become Dean of Harvard Law and now Solicitor General.  But seriously, I’d rather see nominations made on the basis of qualifications rather than identity.  (In that regard, Sotomayor is a stronger pick, with more than a decade on the Court of Appeals.)

As GayPatriot also notes, it would be outrageous for a male jurist to make this statement:

“I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Hispanic woman who hasn’t lived that life.”

But Sotomayor has said exactly that — just reversing the roles of the “wise Latina” and the white male.

I expect she’ll get confirmed, unless some skeleton is found in her closet.  But 29 Republican senators voted against putting her on the Court of Appeals, and that number no doubt will rise this time around.  I just don’t understand why it seems to be only Republicans who care about Constitutional separation of powers.