The silly season seems to have arrived early this year. It has been just a few days since Justice Souter announced his retirement, and President Obama has yet to pick a successor. Nonetheless, commentators have already begun attacking potential nominees for the seat. For instance, there’s a new piece by Michael Goldfarb on the Weekly Standard website titled “Elena Kagan, Radical?” It pulls three paragraphs out of Elena Kagan’s senior thesis on the history of socialism during the 1930s in an effort to show that her “sympathies at the time seem quite clear — and radical.”
Kagan deserves a good deal better than this. As the Dean of Harvard Law School, she reached out to, and strongly supported the appointment of, conservative legal scholars. It cost her political capital to do so, and she spent it willingly. I am not suggesting a quid pro quo — that conservatives somehow owe Kagan a free pass. I’m simply suggesting that as dean she modeled the approach that we should all be taking as we think about what kind of judge we want to serve on the Court. Harvard’s faculty was polarized when Kagan arrived, and she figured out how to listen to both sides and get them to work together. As we now consider how to appoint a new Justice to a polarized Court in a polarized political environment, perhaps we all have something to learn from her example.
Swoon. So well put, even if it does perhaps hurt Kagan more than it helps in this politicized climate. So the big question is: What is the goal? Is it better to polarize, and bring people into your corner? Or come to center, with civil behavior, as the above post suggests? Recent history shows that polarization garners more vocal support.
But should the Court be above all of this? We know that higher passions bring even those politically opposed justices together, as with Scalia and Ginsburg, or those many times when surprising pairings join to concur.
In politics the name of the game is to shift the debate around you so that you seem centrist compared to the rhetoric that (because of you) seems to abound. Is the Court above all that? Daily thesis topic, if I were in grad school: I’d love to look at how “political” justices’ decisions are throughout their career. I bet their opinions are more attractive to party lines at the beginning, and they probably shift as their life tenures ripen. I just wonder, statistically, whether their stances tend to mature towards or away from center.