Judicial Creativity

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Brooks on Kagan:

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out. 

 There's about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest -- and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

It's amazing to me how much class matters to white conservatives. It's not that class doesn't matter to blacks, but I think segregation made us evolve differently--you could get a degree from Howard, but you neccessarily had to have some contact with the poor. There was nowhere else for you to go. Talk to people in Detroit and you'll hear stories of people with college degrees working on assembly lines. That's not something to brag about, but I think it changes how class plays out.

Sorry for the digression, the backlash line caught me. But that aside, I think this is a good point. Yglesias talked yesterday about how lifetime appointments pervert the process. A few weeks ago people were saying we needed more actual politicians on the court. It appears that that's exactly what we are getting. Of course, you could have said this of John Roberts, no?

Andrew offers some thoughts here:

Notice how every single virtue - open-mindedness, pragmatism, "progressive personal values" whatever that means) - is framed as naturally meeting resistance from those outside the sequestered liberal judicial elite. And this opposition merely confirms - how could it not? - the broad beneficence of one of their own, leavened with the necessary sprinkling of inoffensive anecdotage. Even her youthful smoking - what a rebel! - is balanced by her attempt to regulate tobacco in her later years, and, in case anyone might think of her as a puritan, the cigar anecdote is thrown in for good measure.
Yeah, I guess. Doesn't seem that liberal to me. I think I know what Andrew means by "sequestered liberal judicial elite." I doubt that they call themselves "liberal." They're more like the "Pragmatic Elite." Andrew traces this to Bork, and there's probably some of that. But I also trace it back to the need to be "Serious Liberal," as opposed to the kind of airhead who thinks Predator jokes aren't funny.
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Ta-Nehisi Coates is a national correspondent at The Atlantic, where he writes about culture, politics, and social issues. He is the author of the memoir The Beautiful Struggle.

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