President Barack Obama did the unthinkable when he won the presidency: he erased a color line that appeared indelible. He did so by mobilizing a base of support well outside the mainstream. But he did so with both feet planted firmly in the institutional breeding grounds of traditional elites. His Harvard law degree and time at the helm of the Harvard Law Review are eye poppers. He taught for a spell at the University of Chicago. He was a State Senator. These institutional roots may well strangle him as he prepares to name his first nominee to the United States Supreme Court.
Justice David Souter's abrupt resignation after 19 years of service on the Court has everyone wondering who the next justice will be. The legal interest groups are mobilizing their supporters. The press is floating names. I wonder whether the president will do for the courts what his election did for the executive branch: burst the bubble of privilege that makes institutional power the reward of those with just the right pedigree.
Consider the career of Elena Kagan, one of the nominees whose name is etched on the short list of virtually every court watcher. She is young, at least for a potential justice, at 48. She attended all the right schools: Princeton, Oxford, Harvard. She was supervising editor of the Harvard Law Review. She clerked for a U.S. Court of Appeals judge and for Justice Thurgood Marshall of the U.S. Supreme Court. She then worked for two or three years at Williams & Connolly in Washington, D.C., where, no doubt, she retired student debt and added luster to the firm's star-studded letterhead. She may even have met a client or two while there, although she's not talking about that.
In 1991 she went to the University of Chicago to teach law. She was tenured in 1995. From 1995 to 1999 she was one of President Bill Clinton's lawyers. Clinton nominated her for an appellate court seat in the D.C. Circuit in 1999, but that nomination died on the vine.
In 2003, Ms. Kagan was named the first female dean of the Harvard Law School. Her name was floated as a potential president of the University itself. In 2009, President Obama named her Solicitor General of the United States. She has yet to argue before the Supreme Court in her new role.
I am impressed. She has been in all the right places. She seems to be a high I.Q. version of Chance in Jerzy Kozinski's Being There. But, frankly, what has she done while she's been atop the status pyramid?
Kagan is no doubt brilliant. But that and a student loan merely gets you into Harvard or Yale or, gods be damned, Stanford. Work hard, schmooze, build a resume and good things will happen. Live a life without any quality other than the passion to get ahead and by the time you reach late middle age, anything can happen. But sleepwalking to the steps of the United States Supreme Court shows no passion for justice. Kagan is out of touch with lives lived in quiet desperation.
Every state bar knows the Kagan type. Check the web page of the institutional players and you will see list upon list of committee assignments. The hunt for a judgeship takes many a candidate through institutional mazes and cross-cutting relationships that take a marathoner's endurance. Some of the stars of Connecticut's bar have scores of committee assignments to call their own. Their web pages drip with a sort of Who's Who quality. Odd how these same web pages and resumes reflect no comment on cases they handled, or people's lives they've touched. Once again, being there is all that counts.
When I study the Kagan biography I am impressed and then, once the glitter rubs off, boredom sets it. She is the perfect candidate to serve as CEO of a marketing company called "Inside the Box." She can market what it takes to succeed if virtually every break in life goes your way. But this is simply marketing, although this time she's not selling Coca-Cola, she's selling herself. Let her be president of an Ivy League college. She is well suited to play overseer of a status plantation. But she is not material to serve as Justice of the Supreme Court: the blood of litigants runs red, not blue.
Being in the right place at the right time and knowing the right people is a talent few share. It also reflects a passion to calculate well and truly how to peak at just the right time. Eyes forever on one of the nation's top prizes, a life so lived has a soulless quality. Robert Musil's Man Without Qualities comes to mind.
Being there isn't enough. I want to know what a candidate for the Supreme Court has done along the way. What lives have you touched? Do you know from first-hand experience the law's power to exterminate hope or yield deliverance? Is the law merely a parlor game for the tenured clever, or is it a set of doctrines that breathes and takes shape at a moment of crisis?
President Obama, you inspired hope in ordinary Americans. You told folks that they mattered, and that their lives were the stuff of history. Millions heeded your call. And now, amid a time of crisis, they look to you to redeem the hope you offered. The mold you broke to become president should not be reassembled so that yet another sleepwalker can take a seat on the high court.
A life lived according to plan is no life at all. There are passions awhirl in the lives of most men and women. And bad fortune can teach lessons one cannot learn from the perches of power. The next justice should not come from the general's war room in life's great struggles. Choose a justice from those who labor in the law's trenches. Such a justice can teach what privilege and power do not. Harvard can take care of itself; we need a justice who has taken care or ordinary people. Have the audacity to offer hope, Mr. President.
