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Cracking The Kagan Code

Publication Date: 
May 13, 2010
The Economist

Lecturer Thomas Goldstein is quoted in The Economist on U.S. Supreme Court nominee Elena Kagan's personal character:

Barack Obama knows Elena Kagan well. To most other Americans, she is a mystery.

Sixteen years ago a young scholar complained that the confirmation process for Supreme Court justices had taken on “an air of vacuity and farce”. Senators failed to ask hard questions. Nominees refused to give substantive answers. Ruth Bader Ginsburg dodged every query as either “too specific” (meaning, roughly, anything that might have some bearing on a case that might some day come before the court) or “too general” (roughly, anything else worthy of mention). Let’s bring back the kind of grilling to which Judge Robert Bork was subjected in 1987, wrote Elena Kagan. She must be kicking herself.

Barack Obama nominated Ms Kagan to the Supreme Court on May 10th. Having excoriated Justice Ginsburg for refusing to give straight answers, she will look hypocritical if she does the same. Yet Ms Kagan must have noticed that Judge Bork, who made no secret of his views, was not confirmed, whereas the clam-like Justice Ginsburg was, by 96 votes to three.


But for those below Olympus, she is a mystery. She has never been a judge, so she has no paper trail of rulings. Given her talents, she has written relatively little, and that little has been cautious and analytical rather than bold and prescriptive. “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,” says Tom Goldstein, a legal blogger who nonetheless supports her.