Since when does taking risks make someone a good judge? Judges are tasked with determining outcomes based on a clear interpretation of facts as it applies to the law. To expect a judge, especially a judge on the highest court in the land, to take risks completely misunderstands both the position and the law. Your qualms that Kagan did not stake out any controversial or even clear cut positions politically actually makes her more appealing as a judge, not less. Passion and risk have always been the opponents of a proper application of the law, going all the way back to Aristotle. And it should remain so today, even if we insist on politicizing everything else.
Your qualms about Kagan are easily distilled: you wish she acted more like a blogger.
I think you are wrong about her. I listened to a Toobin interview and I was gobsmacked by one line: "She got along with everyone in college." Now I don't know about your college, but my college experience involved passionate intellectual duels with fireworks and explosives over competing ideas. I think that is why Obama wants her. After all, he was the same way at Harvard Law. And didn't you endorse him because of it?
You indicate that you felt uneasy about the fact that she had wanted to be a Supreme Court Justice since childhood. However, back during the 2008 election campaign, when Republicans were criticizing Obama’s “careerism” for just the same thing (writing an essay in grammar school about wanting to be President), you lambasted them for being unreasonable. I think you’re being inconsistent here.
As for her "careerism", it's a bit unfair to say she has never made any hard or isolating decisions in her career. What about her desire to bar military recruiters from campus for which she is now taking flack, or for pushing to hire more conservative faculty at Harvard? But the real unfairness in this criticism is that her nomination to serve as a federal appellate court judge was blocked by Republicans a decade ago. She WOULD have made many decisions by now, and left a paper record for conservatives to dissect, if she was confirmed to the job that she was obviously qualified for and desired at that time.
What risks were taken by Roberts and Alito? Is that really the standard? And where did they experience professional life outside of the same type of East Coast elite community that you and Brooks discuss? The only difference is that they were conservative and she is not. Roberts and Kagan's careers are almost eerily similar in their progression -- Harvard, presidential administration, nominated young for circuit court and being held up by politics, pursuing other highly abstract career (appellate lawyer at fancy firm vs. HLS dean), time in SG's office. I think that a test is being written for Kagan that is very different from what has been expected of other nominees.
Living a life, particularly as a minority woman even in liberal corridors of power, does not necessarily get you confirmed for any jobs, let alone with the Supremes. In fact, the past few hearings have been nothing if not a fuzzing and fudging of the candidate's life and opinions to make them more palatable for the confirmation process and the Senate. I say this not as a PC attempt to cry victim on behalf of women lawyers and judges. But the fact is, there have been only three women Supremes compared to how many men? It is a different playing field for women in the law, one that does particularly reward radicals or even strong opinions.
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