Don't hate the player, hate the game

So the narrative of Elena Kagan has formed pretty darn quick. She's ambitious but murky, secretive and covetous, a highly experienced lawyer with an empty paper trail, possibly a softball-playing lesbian. Of course, like any good Supreme Court nominee battle, the narrative is flawed, crafted in part by waves of countervailing spin and in part by the media's desire for a easy digestible pro/con scheme. Sonia Sotomayor was many things, but the one with the highest syllable-to-controversy ratio was "wise latina", and so that was the thing she was. I won't try to tackle all of it at once, only to state my opinion that she isn't as progressive as I'd like but a) I'm Canadian b) she will, like most judges in recent history, vote the way her president wants her to, and so her liberal cred isn't a huge deal to me. The other thing is that I fall on the Lessig side of things; I think Greenwald pretty grossly misinterpreted her take on Executive authority, and I'll let SCOTUSblog do the heavy lifting for me:

Some have criticized Elena Kagan for supposedly favoring a strong view of executive power. They equate her views with support for the Bush Administration’s policies related to the “war on terror.” Generally speaking, these critics very significantly misunderstand what Kagan has written.

Kagan’s only significant discussion of the issue of executive power comes in her article Presidential Administration, published in 2001 in the Harvard Law Review. The article has nothing to do with the questions of executive power that are implicated by the Bush policies – for example, power in times of war and in foreign affairs. It is instead concerned with the President’s power in the administrative context – i.e., the President’s ability to control executive branch and independent agencies. That kind of power is concerned with, for example, who controls the vast collection of federal agencies as they respond to the Gulf oil spill and the economic crisis.

Nor does the article assert that the President has “power” over the other branches of government in the constitutional sense – i.e., a power that cannot be overridden. To the contrary, Kagan “accept[s] Congress’ broad power to insulate administrative activity from the President.” (2251). She instead makes the descriptive claim “that Congress has left more power in Presidential hands than generally is recognized.” (Id.)

Anyway, I'm getting away from myself. What I really wanted to talk about was the "ambitious" in "ambitious softball-playing lesbian".

This sharp post got me thinking about it. Jonathan Bernstein's point, for the short of reading, is that Kagan is being unfairly maligned for being ambitious, when being ambitious is just a given for those who seek federal office. It's a fair criticism, and fairer still when you think of how uncontroversial an argument it is. Can you possibly imagine a scenario in which an unambitious person wound up president? Maybe if the president and the first 30-40 people in the line of succession were all swallowed whole in a Sarlacc pit, there would be a slight chance that you'd wind up with a replacement president of minimal political appetites. Even then, a stretch.

This isn't to say unqualified people can't occupy political office, just that ambition is essentially a qualification. Those without ambition, be it personal or ideological, just aren't going to get involved. So attacking a politician for being ambitious is, to me, kind of like attacking a politician for being unprincipled. If it makes good political sense for someone to flip and flop all over the place, why wouldn't they? Obviously it's scummy, just like how ambition can be scummy as well, but unless we return to some kind of monarchical system that limits the ranks of the political elite significantly, we're stuck with it. Even then, people are going to keep trying to take the throne, they're just going to use a lot more swords.

Bernstein makes this argument, but it bears repeating: if we fear the rise of judges who hide their paper trails because of their ambition, then we have to change the system of Supreme Court nomination to make hidden paper trails a liability. Ambition is a structural fact of political life and of human nature. Smart people are always going to look at what they want, figure out how to get it, and pursue that strategy, and if the dominant strategy for entering the Supreme Court is to keep your mouth shut as much as possible then that's what tons and tons of judges are going to do. I know that there are strong partisan reasons that would seem to preclude rules reform, but even small things, like a requirement that the nominee had taken a public stand on a certain number of significant issues, could really get rid of this problem. Until that happens, however, talking about the ambitions of a Supreme Court nominee is like talking about a marathon runner's legs: of course they've got them.