By: Ben Smith
President Barack Obama introduced Elena Kagan on Monday in the terms that have come to define his approach to the Supreme Court: She understands the law “as it affects the lives of ordinary people,” he said, adding that her presence will make the court “more reflective of us as a people than ever before.”
Obama promised judges with at least a passing knowledge of the “real world,” but Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s Upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.
But in his remarks about Kagan, Obama chose to emphasize biography rather than ideology in describing his nominee — just the way George H.W. Bush did in introducing Clarence Thomas’s childhood of poverty in Georgia, or as George W. Bush did in presenting an immigrant’s son named Sam Alito.
Indeed, Obama’s two Supreme Court choices so far have done as much to muddy as to clarify his views on what makes a Supreme Court justice. His call for “real world” judges was seen by some as a call to turn away from career jurists like John Roberts. But while his appointment last year of Sonia Sotomayor brought some of the hardscrabble roots that fit her plausibly into the narrative of “real world” judges, she fit that professionally cautious and reserved judicial model in most other respects.
And her résumé was almost identical to Kagan’s — an ambitious, tough, careful, single woman who made her way from New York to Princeton and Yale Law School to legal stardom.
“[Are you] suggesting that Princeton, Harvard and NYC isn’t the totality of real life?” former New York Gov. Eliot Spitzer, who followed the same academic path, joked in an e-mail when asked about the women’s parallel tracks.
The White House strained Monday to cast Kagan in talking points as having also risen from the streets, with “immigrant grandparents” and a father who was a lawyer, yes, but one “devoted to the rights of tenants.”
Press secretary Robert Gibbs deflected questions about her “real world” background by reciting her gilded qualifications, prompting ABC News’s Jake Tapper to remark that it’s not as if Kagan was “a community organizer in Chicago.”
“As a clerk, as somebody who worked in the counsel’s office, as somebody who worked in the policy office here in the White House. … Look, Jake, I don’t think there’s one thing that necessarily provides you with the wisdom of what you speak,” Gibbs replied.
“She’s probably got more diverse experience than most of the appointees that we’ve seen,” said senior Obama adviser David Axelrod. “She’s worked in all branches of government.”
Conservatives weren’t buying it. “It cannot be lost that President Obama, who likes to say he will select high court nominees who understand the impact of their decisions on everyday Americans, has nominated someone who’s spent much of her life in elite academic institutions completely out of touch with the average American and the application of the law,” said former Pennsylvania Sen. Rick Santorum.
Both the administration’s allies and enemies now say the “real world” test is more about the way a justice will vote on cases pitting individuals against corporations or government as it is about life outside the law and the academy.
“Graduates of Harvard University Law School and deans of Harvard University Law School — is that the real world?” asked Jay Sekulow of the American Center for Law and Justice, a conservative legal organization, who dismissed the rhetoric as “code” for “activist judges.”
“It sure seemed like it was going to be Kagan all along — and if it was, why was he talking this way?” wondered another conservative critic of Obama’s picks, Ed Whelan of the Ethics and Public Policy Center.
Obama’s allies also view the “real world” test as something other than a literal requirement that judges have worked as short-order cooks or professional football players.
“The standard criteria that he’s talked about is … someone who does have a common-sense understanding about how the law affects people in their daily lives — someone who gets it,” said Marge Baker, executive vice president at People for the American Way. “There’s lots of ways to get there.”
Michael Waldman, executive director of the Brennan Center for Justice, who worked with Kagan in the Clinton White House, said he saw her as bringing a different kind of “real world” experience to the bench: a role as a senior policymaker from her days as deputy director of Clinton’s Domestic Policy Council.
“Not everybody was born in a log cabin that they built with their own hands, but it is a level of political engagement that is unusual for this court,” he said. “The last one who comes close is Sandra Day O’Connor.”
Waldman said the common thread from Sotomayor to Kagan comes not from life experience, but from a judicial modesty that Obama expressed in a 2001 interview — which flared briefly on the presidential campaign trail — when he described the courts as “poorly equipped” to work major economic change.
“If you’re looking for a common thread, you’ve got people who are going to be very aware of the importance of not having judicial overreach,” said Waldman.
Princeton historian Sean Wilentz, who was Kagan’s thesis adviser, described her as having studied the “futility of dogma” in her senior thesis on New York socialists.
“He’s not looking for liberal legal bomb-throwers — either within the academy or on the fringes of the academy or in the judiciary,” he said. “He’s looking for people who have not only extraordinary legal minds but who have shown a capacity to look at problems from many different angles.”
Courtesy of http://www.aclj.org/News/Read.aspx?ID=3733