Tuesday, May 11, 2010 - 6:06 AM

One of the role of political journals is to police their own side. For example, the Nation and the New York Review of Books should call out leftists who play fast and loose with the facts, or who cozy up to the likes of Castro. Likewise, the National Review and the Weekly Standard should blow the whistle on erring rightists who, for example, play footsie with fascists. (You listening, William Kristol?)
Unfortunately, this happens all too rarely. I mention it because the Wall Street Journal editorial page today carries a column that slaps down the talk that Supreme Court nominee Elena Kagan was anti-military during her time as dean of the Harvard Law School. "Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School," writes her predecessor as dean, Robert Clark. "But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true."
I've taken a few pops at the WSJ edit page in the past, so it is only right to congratulate them today.
Meanwhile, invoking the spirit of Roman Hruska (who in 1970 defended a Supreme Court nominee thusly: ''Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos.''), David Brooks criticizes Kagan for not being more like an op-ed columnist.
Woman in the Gray Flannel Pantsuit
I don't read Brooks that way at all. His commentary depicted Elena Kagan as the Woman in the Gray Flannel Pantsuit, an organization kid practically from birth, meticulous about matters affecting her professional advancement and cautious unto timidity of taking positions that might offend people she worked for.
That description fits so many general officers in the peacetime military that I'd have expected Tom Ricks to note the coincidence after reading Brooks' first couple of paragraphs. My own concern about Kagan is related but different, namely that her confirmation would complete a Supreme Court composed entirely of the same type of people. All the Justices went to the same schools, almost all of them spent their professional lives in the same area of the country, all of them know the same people. They all have many friends and associates prepared to call them brilliant, tireless, incisive and so forth, praise they are willing to return upon request. Theirs are lives of privilege and credentials -- and ultimately, I fear, of entitlement.
It's a awfully specialized, insular group of people to so completely dominate an institution as influential as the Supreme Court. It would be like having all the service chiefs and the Secretary of Defense come out of the Navy's submarine program. A Defense Department with that kind of limitation on its leadership would still have to reckon with Congress and the rest of the executive branch. Justices on the Court have only to deal with one another.
ZATHRAS, yours is one of the most insightful comments I have read on the issue. My guess is that most people don't fully recognize the inbred nature of most SC nominees?
Thanks for the kind words.
I don't know that I'd use the word "inbred," as it conveys more hostility on a personal level than I really mean to. It should be recognized that President Obama did take one step away from the practice of nominating people with very similar professional backgrounds to the Court; in Kagan, he's put forward the first nominee in many years (the unlamented Harriet Miers excepted) whose last job wasn't on an appeals court. To Obama, this must look like a big step; to me, it looks in context to be rather a small one.
Most Americans don't think very much about who gets on the Court. However, most Americans who care deeply about who is on the Court want someone whose performance -- i.e. how they will "vote" on a relatively small number of high-profile issues -- is predictable. That's what the confirmation process is about. The result is what I'm concerned with: a Court selected from a handful of graduates of a couple of schools, deeply divided over small things as people with very similar experiences will sometimes be, tempted to regard itself as having the power to "solve" problems resulting from laws not to its taste and without check to that temptation. It's not a good outcome. I had hoped Obama would have some interest in changing it. It looks as if I was wrong.
National Review and Weekly Standard criticize Republicans with some frequency - when those Republicans do things that are decidedly not conservative (just like The Nation and American Prospect, I think, often do with Democrats who are not liberal or "progressive" enough). NR in particular also has very different types of conservatives, from the Buchananite paleocon wing, to the neocons and everything in between, and they all often disagree with each other. Just this weekend they criticized Bob Bennett (again) after he lost his party's nomination for Senator. Some there criticize McCain,and Lindsey Graham all the time. But then that's all evidence that Republicans are driving moderates out of the party or something, so I guess for their critics, its heads I win, tails you lose.
As for Sullivan's post, I read it three times, and while I think Kristol has a pretty weak argument, I can't figure out what his "smear" was. But then, Sullivan sees "Christianists" lurking behind every corner, and stopped making any sense and lost me for good once he became overly proccupied with Sarah Palin's womb. It's also worth noting that Kristol was one of the very first Republicans to criticize the Bush administration's handling of the war and call for Rumsfeld's resignation - at least as early as late 2004.
Who are the fascists Kristol plays footsie with? Is it ok again to call people fascists - does it only stir up hate, violence and a culture of fear when conservatives do it?
I don't see where Robert Clark supports his contention that she is pro military. I do see where, based on what Clark said in the WSJ op-ed, that she is a person that goes whichever way the wind is blowing. That jives with what Brooks said.
I suspect she'll be confirmed. Let's just hope her go along to get along philosophy doesn't cause too much trouble for our descendants.
I also didn't get that impression when reading Brooks' piece. Ricks must've skimmed-- I don't know --but if he's going to point his finger he really should give the material a closer read. Instead, he threw in his wimpy little closer line at Brooks without any support. Meanwhile, when Ricks posts aren't his frequent "Here's what my friend so-&-so says about this issue..." he gives these brief little finger-pointing seminars with little to no evidence to support his claims.
Reading Divid Brooks' yuppie bleatings. Reading the WSJ editorial page ever.
So they all come from somewhat similar backgrounds, are educated at the same schools, you would think most decesions would be 9-0,or 8-1...however, despite similar educations, judging the same cases based on the same constitution, decesions often are decided at a 5-4 majority. We can get that result from a random sampling of what Miss South Carolina would call U.S. Americans...or rather than Ivy league schools they could get the same same results from State Schools or Community Colleges.
By the way, real judicial power is held at the apellette level, very few cases reach the Supreme Court. That is where presidential appointments count the most.
Finally, Am I the only one who pictures a court with sour-cream when I hear the words "Supreme Court"? Love me some Taco Bell
While I agree with your sentiment about their 'inbred' backgrounds I can't agree with your notion of why the decisions come out so, well, divisive. The reason the decisions come out that way is (I think) twofold. 1) Only the really hard to decide cases make it to the Supreme Court in the first place (self-selection). 2) Up until now the cycle of back and forth placements on the Supreme Court by Dems/Reps holding power in the White House has maintained a very curious balance of politics. Now politics aren't supposed to drive the Court's decisions...but let's be real here.
President Obama has already had the opportunity to appoint two justices, with more likely. That political balance is likely to shift accordingly.
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