Tuesday, May 11, 2010

Old Buck and the Justice

How 1850s Presidents are like 21st Century Supreme Court Justices

When James Buchanan was elected President in 1856, his previous twelve years of job experience looked like this:

1845 – 1849: Secretary of State
1849 – 1853: Did not hold public office
1853 – 1856: Ambassador to England

Why is this interesting? Because in 1856 the political issues roiling America were entirely domestic. The fiery debates over slavery, which had sparked after the Mexican War in 1848 and would explode into Civil War in 1861, were burning brightly in 1856. And so the American people elected a man who…had lived in England the previous four years? A man who had not held a job connected to domestic politics in 12 years? A man who had expressed few public opinions on the major issues of his day?

And remember, when Old Buck was Ambassador (then called Minister to the Court of St. James), it’s not like he was zipping back and forth to Washington on the Concorde, reading the New York Times online, watching CNN over satellite, or exchanging emails via Blackberry with his friends in the Senate. Despite receiving numerous and eloquent letters from informed friends, he lived a life – and held a job – that was largely removed from the domestic political scenes.

So how did he become President? Well, as software engineers like to say, his remoteness from domestic politics wasn’t a bug, it was a feature. You see, since Buchanan didn’t have to win Senate elections or make domestic policy or vote on laws during this bumptious time, he didn’t have to express his opinion very often on the critical issues of the day. Which made him a bit of a blank slate – and being a blank slate was a good thing if you were running for President in the decade before the Civil War. His two predecessors – Zachary Taylor and Franklin Pierce – were similar blank slates. Both were former generals whose politics were a bit of a mystery – sort of the Dwight Eisenhower and Colin Powell of their day.

Blank slates were good because the political fevers ran so hot in the 1850’s that politicians found it difficult to hem and haw and dart and dodge and bob and weave; they had to commit to positions– for or against the expansion of slavery – that made them unpalatable as a candidate for national office.

Indeed, in 1860 the country would elect as President an inexperienced politician who was on record as strongly opposing slavery. The South’s response was secession, followed by a civil war that killed 600,000 Americans.

The Blankest Slate
Why do I bring this all up? Because, from what I can tell, there isn’t a person on earth who truly knows what Elena Kagan believes about a single important issue of our times. As Dahlia Lithwick, the liberal court-watcher at Slate put it “Kagan has mastered the fine art of nearly perfect ideological inscrutability.”

How big a mystery is Kagan? Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court, met Elena Kagan at Harvard Law School. He is an expert on the Supreme Court and has known her both personally and professionally for 27 years – and he doesn’t know what her views are. Here’s Toobin:

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence. 

Her academic writings reveal little. Her decision to bar ROTC recruiters from Harvard Law School’s campus* isn’t as big a deal as the right will make it out to be (the full story is here; the short story is she mostly kept in place a reasonable compromise she inherited). She seems to believe in shareholder rights and executive power. But really – nobody knows.

* a word about the ROTC thing. Many colleges banned military recruiters from their campuses due to “Don’t Ask, Don’t Tell”; they considered it a discriminatory law and therefore barred the “employer”, in this case the United States Military, from recruiting. Putting aside for the moment that the military consists of men and women who are willing to die for our country, “Don’t Ask, Don’t Tell” wasn’t Pentagon policy; it was a law passed by a Democratic Congress and signed by a Democratic President, Bill Clinton. They should have barred them from campus.

This level of inscrutability has been de rigueur for Supreme Court appointees since the destruction of Robert Bork in 1987. Presidents want Justices who won’t be destroyed by the opposition and the easiest way to do that is to nominate someone with an impressive resume and a nonexistent paper trail.

But Kagan’s nomination takes it to a new level because she’s never even been a judge before. Judges generally have to rule on things and reveal a little about how they think about things. No such luck with Kagan.

Now I have no problem with non-judges ascending to the highest court in the land. The very first Chief Justice, John Jay, had no judicial experience, and the most consequential Chief Justice since World War II, Earl Warren, donned his first robes when he joined the court. But these were men deeply involved in the hurly-burly of politics - not academic cloisters like Kagan.

Elena Kagan is, by every account, a deeply intelligent and accomplished woman. And given her background from the Upper West Side, through the Ivy League and the Clinton White House, back to Harvard and ultimately in the Obama Administration - nobody will be surprised if she’s a true liberal.

But Presidents have been surprised before at the judicial picks. The aforementioned Eisenhower called his selection of the aforementioned Warren as the “biggest damned-fool mistake I ever made”. And Ike is the guy who let Monty launch Market Garden.

As for Elena Kagan, I guess we’ll find out. It just may take a few decades.

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