Kagan in the garden


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!"