Commentary Magazine


Obama Highlights What Kagan Is Not

One had the impression listening to Obama’s introduction of Elena Kagan yesterday that the White House spinners had made a list of her shortcomings and then concocted a narrative featuring an un-Kagan who had none of those shortcomings and, indeed, an overabundance of the very qualities honest observers would concede she lacks.

As Ben Smith writes:

President Barack Obama introduced Elena Kagan on Monday in the terms that have come to define his approach to the Supreme Court: She understands the law “as it affects the lives of ordinary people,” he said, adding that her presence will make the court “more reflective of us as a people than ever before.”

Obama promised judges with at least a passing knowledge of the “real world,” but Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s Upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.

Obama also pronounced, “Elena is widely regarded as one of the nation’s foremost legal minds.” This is preposterous. She’s written little, and what she has written is banal and unexceptional. Her speeches as dean are not analytical or historical discourse but pep talks and generic spiels on ethics and the wonders of Harvard Law School’s reputation.

So she brings neither an abundance of non-elite experience nor an intellectual record of achievement. That doesn’t mean she isn’t qualified or won’t make a capable justice, but it does serve to emphasize — once again — the president’s penchant for exaggeration if not fabrication.

His remarks also suggest what he really was looking for in a justice, and regrettably reveal that he (but we hope not his nominee) is confused about what the Court should be doing. He praised her work as solicitor general in “defend[ing] the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.” Is that what she argued: corporation = bad and micromanaging speech = good? Is that what the Court does — find the Democratic cause and construct a legal argument to support it? Even the Washington Post‘s editors spotted the problem with the president’s demagoguery, reminding the former law professor that justices “should decide each case on its merits.”

So she’s not very real world, and she isn’t a renowned scholar, but she sure understands the president’s liberal agenda. Obama is nothing if not totally predictable in his nominations — construct a narrative, appoint a dependable liberal. Kagan, I suspect, won’t disappoint him.