By Walter Olson
I’ve been saying for a while that to understand the Obama administration specifically and much of today’s liberal Left more broadly, you need to conceive of it as a sort of extension of the intellectual and policy culture of high-end legal academia. The nomination of Elena Kagan, best known as a successful Harvard law dean, extends this familiar pattern. Assuming Kagan coasts to an easy confirmation, she’ll join a liberal caucus on the Court that more than ever resembles a faculty meeting.
To the dismay of some on the left, Kagan, like Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor before her, counts as a “cautious and confirmable” pick — a reliable liberal vote, almost certainly, but not particularly known for disturbingly big ideas or impassioned rhetorical gestures. (The Obama administration does contain plenty of law professors of the latter type — from big thinker Cass Sunstein to liberal firebrand Harold Koh — but has not yet chosen to nominate them to the Court.)
Consider the likeliest speed bump on Kagan’s road to confirmation, her decision to bar military recruiters from Harvard, which resulted in a prolonged and losing showdown with Congress. That episode will be the hardest thing on her record for many Democratic senators to accept (though accept it they will). But it was an overwhelmingly, even near-unanimously popular position to take at top law schools. By way of comparison, recall the mini-furor over Sonia Sotomayor’s “wise Latina” comments, which she’d repeatedly delivered in various versions on the academic conference circuit. There, the notion that a judge’s ethnic background could and should make for different and better decisions was met with predictable applause and little challenge; when aired in wider public debate, it proved hotly controversial and the nominee prudently backed away.
Obama spokespeople spent much of last week rumbling about the need for judges with a common touch who’d stand up for the people. This fed speculation that they might mix up the Court by picking an elected official, trial lawyer or crusading prosecutor. Just kidding! For better or worse, we’re in for more law made by Harvard, Yale and Chicago intellectuals.