Kagan in the garden
Elena Kagan is the ultimate Chauncey Gardener nominee
Kagan in the garden
Dick Polman, Inquirer National Political Columnist
Here's the Sunday print column, slightly expanded...and it's not about the BP spill!
Hey, remember Elena Kagan? President Obama's latest pick for the U.S. Supreme Court? Her Senate confirmation hearing begins one week from today, and normally the advance buzz for such an event would be deafening. High court nomination fights are typically billed as great entertainment, the grownups' equivalent of Shrek Forever After.
But I doubt the Kagan show will measure up, for two reasons. The BP debacle has soaked up the news cycle; scintillating testimony about stare decisis can't possibly compete with the emotional impact of a video spillcam. Secondly, there is Kagan, a respected careerist who in 30 years has said and written virtually nothing about the tempestuous hot-button issues - race, religion, gay rights, executive power, abortion - that so frequently land in the laps of the brethren.
Kagan is the quintessential high court candidate for our hyper-polarized era. With ideologues on the left and right eager as always to re-fight the nation's culture war, to pounce on provocative statements and wield them as ammunition, here's someone who has perfected the art of opacity. Everyone is forced to parse her sparse verbal crumbs.
How far we have traveled from the days when high court nominees were expected to be specific about their views and legal philosophies; Abraham Lincoln, while pondering whom he should nominate for the court, famously insisted, "We must take a man whose opinions are known." But the problem, in our era, is that known opinions tend to get sliced and diced by the ideological warriors. Antonin Scalia was confirmed by a unanimous '86 Senate vote despite his strong conservatism, yet he recently told a law school audience that he doubts he could have been confirmed today.
It's tempting to simply describe Elena Kagan as the antithesis of Robert Bork, the doomed Reagan nominee whose outspoken conservative writings served as catnip for Senate liberals back in '87. But she is something far more:
She is the ultimate Chauncey Gardener nominee.
That name may not ring a bell. In the 1979 film Being There, a great comic parable, Chauncey (as played by Peter Sellers) is an affably bland household gardener who, by accidental means, becomes friends with a dying, politically-connected billionaire. The billionaire introduces Chauncey to one of his political pals, the president of the United States. The president asks Chauncey for advice on how to cure the economy. Chauncey, a blank slate who speaks only in platitudes about gardening, replies: "As long as the roots are not severed, all is well, and all will be well in the garden. There will be growth in the spring."
The president, hearing what he wants to hear, praises Chauncey's advice as "refreshing and optimistic," and soon quotes Chauncey at an economic summit. Washington is instantly mesmerized, and thirsts to know more about this mystery sage. Chauncey is booked on national TV, where he opines: "It is possible for everything to grow strong, and there is plenty of room for new trees and new flowers of all kinds. A garden needs a lot of care and a lot of love. But first things must wither. We need a very good gardener. Some plants do better in the sun and others do better in the shade."
Everybody scrambles to divine the meaning behind the words, while hearing what they want to hear. The shrewd billionaire thinks that Chauncey's opacity is a sign of shrewdness. The suspicious press corps views Chauncey with suspicion; as a Washington Post editor grumbles, "he plays his cards very close to the vest." A New York Times editorial decides, with cautious praise, that Chauncey is voicing a "peculiar brand of optimism." The FBI thinks he's a CIA spook, and the CIA thinks that he must be FBI.
Similarly, the Kagan nomination rollout has been a virtual Chaunceyfest.
Granted, Kagan has served as the Harvard Law School dean, as a Clinton White House aide, and (currently) as U.S. Solicitor General, but, she has written only a smattering of scholarly articles and a few book reviews - none of which provide more than a hint about her legal and constitutional views. In the recent words of Washington lawyer and blogger Tom Goldstein, she has been "extraordinarily - almost artistically - careful" in keeping the slate blank. Let the parsing begin.
She wrote a 1996 law review article about the Supreme Court's handling of First Amendment cases, but nobody has yet figured out her point of view. You're welcome to try. She wrote that the high court's traditional approach "constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech...I have never proposed to show that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does...I leave for another day the question whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance."
And all will be well in the garden.
Partisans on the left and right have been forced to cherry-pick where they can. Conservatives have scoured the 90,000 pages released by the Clinton Library, and discovered that, as a Clinton aide, she once wrote in a memo that a federal ban on physician-assisted suicide would be "a fairly terrible idea." She once advised that Clinton try, via legal argument, to postpone the Paula Jones sexual harassment case until his presidency was over. Nearly a decade earlier, while clerking for Justice Thurgood Marshall, she wrote in a memo that she was "shocked" to discover that the U.S. Postal Service had set up a sting to entrap child pornographers. All told, the conservative Judicial Crisis Network declares, Kagan is clearly "a committed liberal."
But the liberals don't feel any kinship, either. They found a Clinton-era memo where she took the side of a religiously-devout landlord who had refused to rent an apartment to an unwed couple. They found evidence that she once argued against the imposition of tough marketing curbs on Big Tobacco. Some also claim that she favors Bush policies in the war on terror - based on one remark that she uttered during her Solicitor General confirmation hearing. When a Republican senator asked her whether she believed that, under military law, an enemy combatant can be detained without trial, she replied, "I think that makes sense, and I think you’re correct that that is the law." But some liberals defend her remark, saying that she was merely noting the law, as spelled out in a recent Supreme Court decision.
Will she dispel all the mystery next week? Not a chance. Which is somewhat ironic, since she herself complained, in a 1995 law review article, about how high court confirmation hearings had become substance-free. She wrote that "the confirmation process takes on an air of vacuity and farce" whenever the nominees become "platitudinous."
Virtually all high court nominees since Bork have sought to say as little as possible, to reduce the circumference of the partisan noose, but none were suited for the task as well as Kagan. It's like the final scene in Being There, after the billionaire dies. The pallbearers are trying to pick his successor, and one of them says, "What about Chauncey Gardner?"
Another pallbearer replies, "What do we know of the man? Absolutely nothing. We don't have an inkling of his past."
To which the first guy says, "Correct! And that could be an asset!"
Dick - Why don't you just come out and say that Kagan's CV simply doesn't warrant her nomination to the Supreme Court. At least those on the right had the good sense to do so when Bush nominated Harriet Miers.
No wonder neither side likes her. It looks like her core ideology is simply "following the rule of law".— yobill626
While she was Solictor General, Ms. Kagan had to rule on the govt appeal of the Fumo sentence. Haven't heard anything about that.- The fact that neither side is crazy about her is probably a strong qualification (in addition to her outstanding professional achievements). A judge who is more interested in getting the law right than following an ideology would be a refreshing change from the last couple of idiots.— yoda
- I am wary of anyone Obama proposes. If he nominates someone that will stick to the letter of the law, he would not be able to get his agenda through because it is against the intent of the constitution. THe fact that not much is known about her scares me. Look at Obama... No past, no school grades, no papers he had written, never held a real job ouside of Acorn and government work, and look what we have now... A disaster: I am afraid she will turn out to Obama lite with the "wise Latina".— chrisrr
- Forgot about Sotomayor - I meant Roberts and Alito, of course.— yoda
- Thanks for that Yoda. Of course the Republican appointees are are ideologues but Democratic nominees are simply getting the law " right ". You are so silly. Nothing but another partisan hack.
- swedesboromike: two from the last blog. First - " Uh Oh!. IPCC consensus on climage change was a phony according to IPCC insider". Not to get preachy, but source material, source material, source material. Follow your own link, and go to the actual paper that article is referring to (it's linked towards the bottom). Not shockingly, that's not what the author of the paper says, nor was it his point. He is looking at the IPCC's tendency to try and build consensus, and the pros and cons of doing it that way. I warn you, though, that the paper, while not that long, is a really boring read................. Second - from your posting about BP campaign contributions - you posted a link to the same article about a week ago. And from your article, which party received more $$ from BP? I guess I'm trying to ask you - so what? Which is it? Is Obama going easy on BP, because $70k of the over hundreds of millions he's raised came from BP, or is he "shaking them down"? At least try to be consistent.— still_independent
- Actually, I think Joe the Plumber is the Chauncey Gardner of our day.— anonymous
- Yoda, what professional achievements? Her publication record (or lack thereof) is embarrassingly sparse for a SCOTUS nominee. A few years as Dean of Harvard - a primarily administrative job - certainly doesn't qualify her. Her qualifications are nowhere near those of Roberts and Alito -- she is the least qualified nominee since Harriet Miers (who also had no business on SCOTUS).— jfar86
- The fact that the author chooses to draw an analogy to "Being There" is outstanding. Like "Network," it was a movie that drew heavily on what it envisioned the future would be, a future (politically, socially, media-wise) that has come true. Well done.— HeywoodEm
Hopefully, Ms Kagan will be the foundation of a Left court that will begin the deconstruction of the fascist corporate consolidation of power, that peaked with Roberts.- swedesboromike/tom: and do you remember the "Amazongate" story back in February that you two brought up repeatedly (that was that the rainforest claims being from a non-peer reviewed WWF story)? Well, the Sunday Times from the UK, that's the paper that ran the story, just retracted it. Turns out that it was peer reviewed. And the author from the times knew it, but printed the story anyway. Here's part of the retraction "...The IPCC had referenced the claim to a report prepared for the World Wildlife Fund (WWF) by Andrew Rowell and Peter Moore, whom the article described as “green campaigners” with “little scientific expertise.” The article also stated that the authors’ research had been based on a scientific paper that dealt with the impact of human activity rather than climate change. In fact, the IPCC’s Amazon statement is supported by peer-reviewed scientific evidence. In the case of the WWF report, the figure had, in error, not been referenced, but was based on research by the respected Amazon Environmental Research Institute (IPAM) which did relate to the impact of climate change. We also understand and accept that Mr Rowell is an experienced environmental journalist and that Dr Moore is an expert in forest management, and apologise for any suggestion to the contrary. The article also quoted criticism of the IPCC’s use of the WWF report by Dr Simon Lewis, a Royal Society research fellow at the University of Leeds and leading specialist in tropical forest ecology. We accept that, in his quoted remarks, Dr Lewis was making the general point that both the IPCC and WWF should have cited the appropriate peer-reviewed scientific research literature. As he made clear to us at the time, including by sending us some of the research literature, Dr Lewis does not dispute the scientific basis for both the IPCC and the WWF reports’ statements on the potential vulnerability of the Amazon rainforest to droughts caused by climate change."— still_independent
If I were a conservative on the committee, I would want to see something in her past that has to do with the Constitution. Where does she stand? Working for Clinton, has she ever had any experience in Article II? If I were a Lib on the Committee; I would not want anything out about any litigation that is in her past. Especially, all the Affirmative Action positions, i.e. the Latina Sotomayor! Give the Media they're Marching Orders and wait it out..."This games not that hard Harry."— LifeLiberyPursuitofHappiness- I like what I have read about Kagen. In prior positions she attempted to build a bridge between the right and left wings. That ability will make her a valuable member of the court in building coalitions for decisions. And to say it again - have to respect President Obama's forceful handling of the BP spill. Bravo Mr President, brings tingles to my spine !!!— FormerGOPer
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
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