Yesterday's New York Times carried another in a series of stories that made my heart sink. This time the paper reported on Elena Kagan's views on policy matters under debate in the Clinton White House, where she worked as a deputy to the president's domestic policy advisor. The Times reported that she was a centrist on matters of race, and battled on behalf of middling sorts of views on race-related policies.
Two thoughts sprang to mind as I read this: First, what in the world is a young lawyer doing trying to set social policy? Second, why in the world would anyone think that political infighting in the White House as a policy wonk would be suitable experience for a potential Supreme Court justice? When Kagan wasn't playing politico she was trying to play philosopher king: neither role is the lawyer's role. Why is there no chapter in her biography about her role as a lawyer serving ordinary people?
I ask for the umpteenth time: Why not have a trial lawyer on the Supreme Court?
My office is located not far from the Yale Law School. So although I am not a graduate of the school, I hear a good deal about what goes on there. The school boasts silently that it is a training ground for future judges. I suspect the same conceit animates Harvard. Graduates of the nation's premiere law schools have an uncanny way of occupying the law's positions of power and prestige: They jump from the top of one pyramid to another.
But the overwhelming majority of Americans, and lawyers, do not view the world from atop a mountain. Most of us struggle in valleys shadowed by need, despondency and struggle. The life of an ordinary American is not one of privilege, but of struggle. What do they teach about that at Harvard and Yale?
Elena Kagan is about as suited to become a justice of the Supreme Court as I am to teach a course on ballroom dancing: All I know about Fred Astaire's and Ginger Roger's moves are they look smooth and please the eye. But I can't dance. I don't even aspire to learn how to dance; elegance escapes me.
There is nothing about a decent law school education that should prepare one to be a policymaker. When I see young Turks from Harvard and Yale sitting in seats of power in Washington I sigh in despair. In law school, you learn legal doctrine, how to write briefs, perhaps even how to argue. A legal education is about learning to represent the interests of others. A lawyer who spends three years in law school and graduates with a policy orientation and agenda all his or her own didn't need a law school education to form those views. A lawyer learns first to serve others, to take another's point of view, another's interests, as his or her own.
So when I see that Kagan spent time as a young lawyer in the trenches of some ideological warfare advancing her own idiosyncratic viewpoints that tells me only that she knows little about what lawyers do. When I step into the well of a court to defend a man accused of murder, I have not suddenly concluded that killing people is good. I use the law to serve the client's interests, not as a means of advancing my own.
A working trial lawyer's days are bounded by the interests and needs of his clients. The law is a not a vision of the good life, it is simply a set of tools used to serve those concrete interests of people with cases or controversies. Practicing lawyers read cases not as cryptic pieces of social philosophy, but as doctrinal decisions about issues that matter to their clients. The current tendency for the court to write long and tendentious decisions on every conceivable topic is a reflection of judges playing at moral and political philosophy, a job they are ill-suited by education to play. Hence, the tedious rumblings of Antonin Scalia, a zealot without portfolio.
Confirmation hearings shouldn't be about the cryptic philosophy of nominees. They should be about whether a nominee is a capable jurist, one who has a feel for the law's conflicts, and the tools the law uses to solve them. I have yet to see that Elena Kagan is much more than a legally-trained bureaucrat. We have a court chock full of these wordbags. We don't need another.
Rather than trolling through the detritus and trash bins of a career wasted playing politics, we ought to be looking at a nominee's legal briefs, arguments and trial transcripts. Does a potential judge comprehend how conflict is managed? It would be refreshing to have a hearing that wasn't reduced to reading tea leaves, but was instead focused on court records.
What the nation needs now is a trial lawyer on the Supreme Court. Instead, we get another politician with a law degree. How long, Mr. President, how long must we wait to see a trial lawyer on the court?
