WASHINGTON -- From the supporters of Elena Kagan's nomination to the Supreme Court, we have learned that as Harvard Law School's dean she provided free bagels and coffee to students, improved the gymnasium and added a multipurpose ice rink. Her detractors have reported on liberal columns she wrote -- as a college student in the Daily Princetonian. Profiles have informed us that during Kagan's Supreme Court clerkship, Justice Thurgood Marshall dubbed her "Shorty."
The chattering class is focused on such trivia because there is not much else to say. The single most prominent thing about Kagan is her extraordinary ability, while holding high-profile jobs in the legal profession, to say nothing about the major issues of the day.
It is the one judgment that Kagan observers of all ideological backgrounds seem to share. Tom Goldstein, a Kagan supporter, admits, "I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade." Carrie Severino, a Kagan critic from the right, concludes, "She's been so careful for so long that no one seems to know exactly what she does think." Glenn Greenwald, a Kagan critic from the left, contends that "her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies."
Kagan has been a leader in the field of law without having a distinctive legal voice. She has been a leader in academia without having left a discernible academic mark. We know little about her views and values -- and we are not intended to know much about them. This has become the path of least resistance to the Supreme Court -- being eminent without being conspicuous.
But no public life is without a trace. In her story we can discern at least a few things.
First, we know that she is connected to just about everyone in the legal establishment, and most seem to like her. She was a classmate of former New York Gov. Eliot Spitzer and legal commentator Jeffrey Toobin, and was a protege of historian Sean Wilentz and Judge Abner Mikva. As dean of Harvard Law School, she hired conservative scholars and treated them decently. On a personal level, she is not a vicious partisan.
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