Archive for the 'Supreme Court' Category

ambition, jealousy, and the Supreme Court

What better way to revive the blog after settling back in to life in the US than with a post on ugly human character traits and our country’s highest court.

But first, an aside: I think it’s awesome that our Solicitor General is properly referred to as “General So-and-so”, and let me to all you overpaid private sector types who shudder at the thought of taking a pay cut to go work in government … being called ‘General Insert-Your-Last-Name-Here has got to make up for at least a few hundred thousand in compensation, right? Not that you’d always have to stand on formality; I’m sure you could have your underlings just call you Commander Fancypants. Also, you could start wearing ascots.

And now back to our regularly-scheduled blog post. General Kagan has been nominated to replace outgoing Supreme Court Justice John Paul Stevens. You can read complete, detailed coverage of Kagan’s career at SCOTUSblog. Commandant Kagan’s career has been illustrious, to say the least: Princeton undergrad, Harvard Law, Harvard Law Review, Supreme Court clerk, private practice, tenured professor at Chicago, service as a government lawyer in several positions in the Clinton White House and briefly in the Senate, law professor at Harvard, Dean of Harvard Law School, and now Solicitor Fancypants under Obama.

But to read the popular and elite commentary on the issue, you’d think that Kagan’s very success is a problem for her nomination. Uber-blogger Andrew Sullivan has been all over this, decrying Kagan’s ‘careerism’ (a dirty word, apparently) in what has become a typical view among pundits and Average Joe’s alike: “Her life, so far as one can tell, is her career.” That’s an odd criticism, coming from a man who admits he spends upwards of 12 hours a day, every day, blogging for a living. It’s also an incoherent position on the merits. Such criticism of Kagan boils down to a misunderstanding of the role of ambition in life and a failure to engage in basic self reflection.

First, let’s examine Sullivan’s particular gripe about Kagan’s ‘careerism’ and her supposed risk aversion. “Name one risk she has taken with her career,” he challenges his reader, and then says of himself, “I can’t.” He’s really talking about Kagan’s remarkable track record of not taking public, forceful positions on issues like abortion, terror policy, gay marriage, and so on during her illustrious career thus far.  That level of caginess is remarkable, and we’ll get to that in a second. But for now, let me answer Sullivan’s question from a different perspective.

What risks has she taken? How about giving up the promise of an extremely lucrative career as a lawyer in private practice? Someone of Kagan’s intellect, education, and work ethic can count on making partner and holding down million-plus salaries in relatively short order. Instead, Kagan left her firm and became an academic. “Big deal,” you might say, “don’t academics have comfy, risk-free jobs?” Sure they do. But then Kagan took a 2-year sabbatical from her cushy gig at Chicago to go lawyer for the government. And when Chicago gave her an ultimatum — come back and teach or be gone forever — she gave up tenure for the extremely risky life of a politically-appointed government lawyer. No public sector union or bureaucratic protection for her. She served at the pleasure of the president. Fall out of favor and you lose your job. Work at a pace comically similar to a character from The West Wing. That seems like a really big risk to me. It’s a risk that most people in this world aren’t willing to take. The vast majority of people in her position would (and do) opt for the paycheck of private practice, or the security of academia. Kagan decided to get involved, instead. And years later, when Obama asked her to leave her job as Dean of Harvard Law School so she could spend her days kissing Senators’ asses for confirmation, listening to people whisper nastily about her sexual orientation on TV, newspapers, and blogs, and have her briefs and oral arguments attacked from left and right by people unfamiliar with the unique role of the Solicitor General — she said yes. If Andrew thinks her career represents some sort of risk-free romp through the corridors of power, then he hasn’t thought very rigorously about what it really means to make those decisions.

Sullivan’s main problem with her careerism, however,  is with the coyness and caginess that goes along with it. He’s outraged that she hasn’t, in his opinion, come out and definitively told the public whether or not she is gay. He’s outraged that she hasn’t written 40 opinionated blog posts about the issues of the day for the past decade, as he himself has. Underneath this criticism is a concern that Kagan has had the part of her personality that generates and articulates opinions attenuated. Somehow, she seems less human than Andrew might prefer of a nominee to the highest court in the land.

While it’s fair to call Kagan extraordinarily coy, it borders on insanity to blame her as the nominee. If Kagan is coy, that’s because she has correctly read and understood the rules of the game for people who want to be on the Supreme Court. Ever since Bork, everyone knows that you get confirmed by never taking controversial public stances on things people actually care about. Them’s the rules. You can blame the rules, as Matt Yglesias thoughtfully does, but you really can’t blame Kagan herself for seeing and following them better than her contemporaries. That’s just called being good at what you do.

As Jonathan Bernstein astutely points out, this whole controversy boils down to a misunderstanding of the role of ambition in life:

1.  Regardless of the way we choose Justices or any other top position, we’re going to get candidates who are highly ambitious; there’s just no way to avoid that.

2.  Therefore, it is foolish to count it against any candidate that she appears to be ambitious, or that she does the sorts of things that people who want to reach the Court (or other high office) organize their lives to do.

3.  It is possible, however, to think of reforms that would change the ways that ambition is expressed.  If you want more explicit statements of political positions, make that a requirement.  Just don’t mistake any of that for purging ambition from the system, or for opening the gates to less ambitious people.

I think Jonathan is onto something here, and so I’d like to take a moment to defend ambition and ‘careerism’ from the ignorance displayed by arguments along the lines of Andrew Sullivan’s. Sullivan mocks Kagan for the sin of, as the NYT reported, wearing a judge’s robes in her high school senior yearbook photo and for daring to express from such an early age her ambition to serve on the Court. In my mind, that pretty much makes Sullivan a jerk. Certainly most of us didn’t have such specific high aspirations for our lives when we graduated from high school. But I think Sullivan isn’t being honest with himself or with us if he means to say that he never had high hopes and dreams for his life. I remember very clearly wanting to shoot for the stars when I was in high school. I still do. I’m pretty sure Andrew had some hopes and dreams, too. Mine weren’t and aren’t nearly as specific as Kagan’s — but that’s not to say that my way of being is better than hers. In a lot of ways, having a more clear idea of what I want to do would really help me organize my life around achieving those goals.

Unless Sullivan is some sort of inhuman brute who never had a childhood dream, then his critique seems to be more about Kagan’s success at translating her childhood dream into a career than it is about her dreaming capacity as such.

Sullivan’s complaints, and the many others who share them, reveal more about the speaker than they do about Kagan. It’s plain old Daft Punk jealousy that someone else was harder, better, faster, or stronger than us — smarter than us, harder working than us, and ultimately more successful than us. Or, Sullivan’s complaints are that Kagan had different goals than he did. He wanted to pontificate from his La-Z-Boy. She wanted to be a Supreme Court Justice. Maybe Sullivan wants to say that wanting to be a Justice is beyond the pale. That’s a problem, because I’m pretty sure it’s an awesome job, and I doubt I’d turn it down if I had the chance. And I doubt Andrew would, either. The next step is to organize one’s life around attaining that goal. That’s something Kagan was willing to do, so good for her. It’s not something Andrew has done, nor I (given that you’re reading this public blog post). But it’ll be a cold day in hell before people in general give up their dreams to please our own sense of propriety about just how high they’re are allowed to rise and just how hard they’re allowed to work and just how much they’re allowed to give up in return for achieving their goals.

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Why can’t they just say what they mean?

My father recently became interested in constitutional law. As a genuine, gun-toting liberal, he was particularly interested to read Scalia’s majority opinion and Stevens’ dissent in the Supreme Court’s 2008 Heller decision, [which established 2nd Amendment rights as individual rights and applied the ruling to all federal enclaves but not the states]. First he read Scalia’s opinion and found himself persuaded. Then he read Stevens’ dissent and thought his argument, too, was persuasive. His ultimate complaint fell against the Founders: “Why couldn’t they have just said what they mean?” This is a typical complaint against laws in general and the Constitution in particular. Wouldn’t life be simpler if these documents just said what they mean?

Maybe that’s asking too much. Keep in mind that the Constitution is two things at once: 1) our founding document and basic law, and 2) a political compact, the result of negotiations rooted in a particular historical context. Clarity and precision might be desirable for a constitution, but it can be anathema to political compacts. The Founders were trying to entice the separate states into a permanent political union with each other, a complex negotiation that required drawing in the disparate geographical regions, economies, social classes, races, ethnicities, cultures, and religions then present among the states.

As any negotiator can tell you, specificity can be essential to bringing agreement. The 3/5ths compromise on representation (a boon for the southern slavocracy) was balanced against the prohibition of the slave trade after 20 years (a boon for the anti-slavery faction north and south, as contemporaries thought that slavery would never survive through natural population increase). Specific constitutional provisions were needed to entice these two opposing factions into political union.

But sometimes specificity can be an obstacle to political compromise. One big sticking point during the constitutional convention and later during ratification was the philosophical disputes between the federalists and the anti-federalists on the nature and duties of government. Very briefly, Federalists like Hamilton thought that securing specific rights in the Constitution was unnecessary (since non-enumerated rights were still reserved to the people) and antithetical to the idea of a democratic government (since only under monarchies did people negotiate with their rulers to carve out liberties). Anti-Federalists like Jefferson and Madison were very concerned with securing an enumerated list of the people’s liberties that was as complete as politically possible in order to prevent tyrany of centralized government.

Short of solving this age-old philosophical debate in the few short years of negotiation, ratification, and initiation of the federal government (which is clearly impossible), how could the Framers entice these two sides into a political union? One answer seems to be the artful use of ambiguity. Agree to enumerate a brief Bill of Rights in the first Congress, but make the Bill brief and vague enough to be open to interpretation. After all, that’s why you went to the trouble of creating a judiciary based on common law in the first place. Like any good negotiator, when the Founders were faced with an intractable problem, they did their best to satisfy people’s deepest concerns, and then kicked the can down the road to let the judiciary sort things out as best they could in the future.

Let me conclude by saying this is a feature, not a defect, of our Constitution. A handful of rich, old, white men working in a short span of time cannot sufficiently answer every single constitutional question that will face a nation of any longevity. They can do the best possible given their cognitive, temporal, and political constraints, and then leave the task up to us to continue. That’s why they can’t just say what they mean. They don’t know exactly what they mean, and some things are best left ’till later.

Update: It’s nice to get some back-up from someone who’s actually an expert on conlaw. Here’s Justice John Paul Stevens’ take on political compromise, ambiguity, and the role of the judiciary from a great profile in the New Yorker:

[Stevens] recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the [House] committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”What that told [Stevens] was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”


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This is a group blog. JSC5 currently writes from the US. JSC7 writes from behind the Great Firewall of China.

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