Today’s Washington Post profile of Elena Kagan attempts to answer the criticism of Kagan’s lack of experience for the Supreme Court, both as a judge (which she has never been) and in actual law practice, which she has mostly eschewed for politics and academia. However, if Alec MacGillis intended on assuaging fears of Kagan’s impact on the court, the article instead substantiates the biggest suspicions of her critics. The “unique experience” of Kagan comes from trying to get results in the “imperfect system” of legislation and executive enforcement. Guess what that means?
If the Senate confirms Elena Kagan, she would serve on a Supreme Court that is likely to take on big questions regarding the powers of the federal government, notably the constitutionality of President Obama‘s health-care overhaul.
But Kagan would bring a perspective in short supply on the bench: firsthand experience in the White House amid the bureaucratic and political constraints of government. Records from her years as deputy domestic policy adviser in the Clinton White House suggest that she received a strong lesson in the mundane realities of government: the internal conflicts, the pressures of public opinion, the constant settling for the less than ideal.
The White House she belonged to between 1995 and 1999 took a view of government as a tool to improve people’s lives. But it also had a keen sense of limits; it had been reined in after the Clinton health-care plan failed and Republicans won control of Congress in 1994 and was, with exceptions, keeping in check its ambitions even before the distraction in 1998 of the Monica S. Lewinsky affair. …
Paul Light, an expert on the federal government at New York University, said Kagan’s White House experience would be most valuable in an area in which the court often seems to lack understanding: the executive branch’s challenge in implementing the sometimes vague language of legislation.
“Having a basic understanding of the messiness of government is useful,” he said. “It gives you some grounding. She knows what it’s like to get something done in a system that impedes breakthroughs at every corner. . . . Having someone who understands the frustration of running something would be helpful to the court.”
How exactly would that be helpful? After all, the Court is supposed to be limited by the same Constitution and the same laws passed by Congress that limit the executive branch’s authority as well. It’s not the Court’s responsibility to make the system perfect, but to ensure that the legislature and the executive don’t intrude on the authority of the other, and that both don’t intrude on the rights of Americans.
Theoretically, that’s true. For some, though, that theory is just that — a pretense one holds while pushing the Court to make the changes that politicians either cannot or will not make themselves. This kind of experience in the flawed process of governing only becomes germane if Kagan wants to use the Court to “perfect” the government through judicial activism. It’s a call to have Kagan become a high priest rather than a jurist, and a lawgiver rather than a judge.
Otherwise, the Court is already well versed on how imperfect governance can be, having to hear case after case involving government overreach and failure each and every session. As a moment’s thought would reveal, the Supreme Court deals in almost nothing but issues of imperfection in government operation in some form or another. Absent the implicit push for judicial activism, this defense of Kagan is completely irrelevant.
If Kagan wants to be a lawgiver, let her run for public office. If we want real-world experience on the court, then Barack Obama should appoint someone who hasn’t spent the last twenty years in the White House and in Academia. But if Obama wants a judicial activist who has no connection to the private sector, it seems the Washington Post profile paints a picture of just the right choice.