Posts Tagged 'Elena Kagan'

The internet and privacy: stop taking the easy way out

[by JSC5]

[Update: Thanks to Jonathan Bernstein for linking to this on his site and giving us our biggest readership day since we started. For all of you new-comers, if you like what you see, please feel free to look around the rest of the site and sign up for our RSS feed.]

Jonathan Bernstein may be (is!) a brilliant analyst of the structure of American politics in the modern era, but I really hope people don’t start taking his words of wisdom on other major life issues seriously:

Kids: never, ever, ever, write something anywhere that you don’t want to see on the front page of the newspaper.  Forget the WaPo; the universe is going to make you suffer, and it’s just brutal.

Let’s imagine I’m an impressionable kid and I take Jonathan’s advice seriously. What effect does it have on me? I’ll give just two of many examples:

  1. I’m going to have a hell of a time maintaining long distance relationships of any kind (friendship, family, romantic). The phone only really works if you pre-plan a meeting time that works for both of your schedules, a challenge that becomes especially thorny if you’re calling across time zones. Written communication opens up the possibility of regular, spontaneous contact — the kind of contact that social relations thrive on — by letting the sender write when she has the opportunity and the receiver read it when he’s got a free minute. But would I really want the New York Times to run with the hyperlinked headline: “So-and-So Calls Shake Weight Ad ‘Funny as Shit’ ‘” ? Like an inmate or an astronaut, I guess I better restrict my long distance relationships to a once-a-week phone call from now on.
  2. I will never go on the record with an opinion stronger than “I guess it could be defensible to conclude X, but proponents of !X make some good points, too.” This one’s a no-brainer. It’s really hard to know what the big issues of the day will be 10, 20, or 50 years from now when people might be digging through my written record for a quote to exploit. No one’s ever been impeached for saying they love America, apple pie, and grandma — or for omitting their opinion entirely. If I want to have a successful career, clearly I’m going to have to turn into either a blithering idiot of a stereotypical politician on the one hand, or Elena Kagan on the other.

Whether we’re talking about private missives or public pronouncements, Jonathan Bernstein’s advice to keep yourself out of the written record is just terrible. When so much of who we are is mediated by writing, it’s detrimental to humanity to tell young people that the tyranny and whim of public standards of acceptability should determine who they are and what they write.* And unfortunately, Bernstein’s advice seems to be pretty common. The popular reaction to the Weigel affair, which Bernstein is writing about, seems to be: hey, he shouldn’t have written those emails with the expectation of privacy, and he should have known what was coming to him if they got out. That’s the typical advice to young people regarding internet privacy, and privacy in general.

Maybe it’s good strategic advice for an individual — but, given the developmental and experiential importance of putting yourself in your writing, maybe it’s not. Either way, it is a terrible standard to be advocating to the public. We desperately need to move away from a society that invests zero effort in understanding what someone is really trying to say and instead focuses on the ‘controversy’ surrounding the statement itself. We desperately need to move away from a society that doesn’t give a damn about context, presumptions of privacy, or the complicated inner world of all human beings.

I think most people realize we need to end this culture of public tyranny. And yet very few people seem to be willing to argue against it when it matters. Telling someone you’ll keep your trap shut if ya know what’s good for ya may help him avoid getting whacked by the mob, but it won’t do much to end the reign of terror of La Cosa Nostra. And that is, after all, what we need to do.

*This may seem at odds with my previous post on Elena Kagan, in which I defended her for making sacrifices and structuring her life to maximize her odds of ascending to the Supreme Court. I’d separate these two posts by noting that Kagan is an individual who should be free to choose the life she wants, which apparently involved neutering her public, written opinions in order to have success in her profession. That’s a legitimate choice for an individual to make, and far be it from me to start criticizing her work-life balance. People are allowed to prefer work. Jonathan Bernstein’s advice, however, applies more broadly to just about everyone, and affirms the principle that we all ought to judge others and expect to be judged by whatever the prevailing standards of middle-of-the-road, vanilla opinions are these days. As a standard that would apply to everyone, I find this very disagreeable and worthy of ridicule.

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

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