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.Anyway, I'm getting away from myself. What I really wanted to talk about was the "ambitious" in "ambitious softball-playing lesbian".
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.)
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.
I think the International Paralympic Committee would seriously object to your concluding analogy.
ReplyDeleteAnyway, I guess I haven't been following the back-and-forth as much as I might like, but is this argument over her ambitiousness really at the center of the controversy? Of any controversy? You're point is well made and I absolutely agree; I'm just surprised so many people would take the opposite view or make this the focus of their criticism.
What might bother me more than her ambitiousness (the supposed reason for her clean slate) is the clean slate itself. I'm sympathetic to Greenwald's argument that it sure would be nice to know a little bit more about a person's stance on things before installing her as one of the most powerful people on the planet for the next quarter-century. On the other hand, as you point out, the criticisms he levels against various positions she's supposedly taken (on the unitary executive, but also on free speech, I think) don't always stand up to closer scrutiny. That being said, any rule that might require supreme court nominees to have taken a public stance on a certain number of significant issues would probably be impossible to non-retardedly implement. What would constitute a significant issue? Would there be a list? How many stances would be enough? What constitutes a stance? At least in theory, I think the constitutional confirmation process ought to be able to address ad hoc any seriously troublesome gaps in experience or qualification.
When it comes down to it, I think I'd put myself in the Kagan/Lessig camp as well, but for an admittedly very stupid reason. In the absence of any real evidence to indicate she won't be Obama's Souter, and taken as a given that she is obviously intellectually qualified and that she is obviously not a right-winger, I'm just willing to trust Lessig when he assures us all that's she's the real deal. I like Lawrance Lessig. I agree with him on most things. He has worked with her and he vouches for her. Should one trusted source's informal testimony provide the basis of a senatorial confirmation? Absolutely not. But I'm not a senator.
Here's a post that I think sums up the anti-ambition take fairly well:
ReplyDeletehttp://andrewsullivan.theatlantic.com/the_daily_dish/2010/05/the-purity-of-her-careerism.html. Mind you, he is also criticizing her for a lack of publicly held positions, which I think is a bit of an overblown argument.
As for some kind of rule change for the nomination process, that was obviously a casually offered suggestion and not something that I think would be bulletproof. I'm just thinking that if people are tired of candidates that work really hard to say absolutely nothing, then there are ways to address this. As it is, the confirmation hearings are a) really boring b) not very informative or clarifying and c) not able to do much about what political narrative has been established beforehand, making them kind of useless. Kagan herself has criticized them along these lines.
And yeah, I am also sympathetic to Greenwald's argument, but it's an argument that rolls exactly into what I'm saying. The last nominee who put out much of anything super controversial beforehand (and, realistically, wise latina was never going to be controversial outside of cable) was Bork, and it's not for nothing that people talk about getting Borked. As long as I've been paying attention to Supreme court nominations (Alito or Roberts, whichever came first), I don't remember ever being satisfied that I knew their positions or not.
I know that sometimes I sound like a broken record, but I think that the ambition narrative also goes along with the whole softball-playing lesbian thing. I haven't been following this as closely as you seem to have done, but it sounds to me as though there is a gendered dimension to this discussion as well...?
ReplyDelete