Who is Elena Kagan?

Language is the garment of thought, said Thomas Carlyle. If so, Elena Kagan, Obama’s nominee to fill the vacancy of retiring Supreme Court Justice John Paul Stevens, is practically naked. So little has she written that would tell us who she is – the garments of her thoughts – she’s a candidate for the charity of a Goodwill store.

In addition to a paucity of published articles, opinions, or legal analyses of issues or case law, she has never been a judge – not even ruling on a traffic court case – and her practice of private law amounts to a scant two years. At age 50, her entire professional experience has been in academia and stints in government positions. She is conspicuous for her obscurity.

Yet Obama’s effusive introduction of this unknown as his SOTUS nominee bordered on the second coming of Abraham Lincoln.

Obama said he wanted a justice who understood "the real world … someone in touch with ordinary Americans … with a keen understanding of how the law affects the daily lives of the American people." Kagan is “one of the nation’s foremost legal minds,’’ Obama gushed. Her confirmation would create "a court that would be more inclusive, more representative, more reflective of us as a people than ever before." Wow!

Joe “Six Pack” Biden – Mr. Everyman – raved “She is Main Street. Both her parents were the son and daughter of immigrants. ... This is a woman who's lived in the real world."

Really? I don’t know what “real world” Obama and Biden think Kagan inhabited, but it isn’t the one into which I was born and lived. And if Nominee Kagan has any understanding of how settled law affects the daily lives of ordinary people, she must have read about it on the editorial pages of The New York Times.

Just how “real world” and how “in touch with ordinary Americans” is Elena Kagan?

Kagan grew up on Manhattan West Side in the rarified atmosphere of privilege. Her father was a tenant lawyer and activist. Her mother taught at the Hunter College High School – one of the elite Manhattan schools that occupied two floors of a downtown New York office building. Kagan was one of the super-bright kids chosen to attend this prestigious program. One of her school mates recalls that Kagan’s ambition was to be a Supreme Court justice and in fact her graduation picture was taken in judicial robes with a gavel.

After graduation from Hunter she attended and graduated from Princeton, another elite school, from which she won a Fellowship to study philosophy at Worchester College of Oxford. Upon returning to America, she enrolled in Harvard Law School, another elite school, and was selected to write for the law review. Upon graduation she landed a prized clerkship with federal appeals court Judge Abner Mikva in Washington, D.C., which launched her into a clerkship with 80-year old Justice Thurgood Marshall when she was only 27 years old.

As her clerkship wound down, Kagan began to think of career paths. She worked in private law practice with the firm of Williams & Connolly, but that apparently wasn’t her cup of tea because she moved on after only two years to join the faculty of the University of Chicago where she taught law. Another young lawyer, Illinois State Senator Barack Obama, was also teaching law there “on the side” but did so as an instructor, not as a faculty member.

Despite having published only one article in the “publish or perish” world of academia, Kagan was granted tenure, objected to by her fellow faculty and unheard of in universities of any stature. By then Judge Mikva had joined the Camelotian White House of Bill Clinton as Counsel and wanted Kagan as his associate – a heady experience for a career-minded woman in her mid-30s.

As Clinton’s second term ended, he nominated Kagan for a seat on the Appeals Court bench, where Mikva had served, which would have skipped her over laboring on a lowly federal District Court seat. But the Bush Administration took over the White House and her nomination went nowhere. The bench seat she’d hoped for went to John Roberts, now Chief Justice of SCOTUS.

Kagan attempted to return to Chicago to teach law but the Law School wouldn’t have her, so she landed a faculty position with Harvard Law. Two years after that she was promoted to full professor, and two years after that she was the first female Dean of the Law School. As a former college professor myself, I can say that upward mobility of this speed for someone with so thin a curriculum vitae is unheard of.

Enter the Obama Administration and Kagan is invited to become the first woman Solicitor General in 2009. The SG is a lawyer whose client is the United States. When cases come to the Supreme Court, it is the SG who argues the government’s position (which is presumably the people’s position) against Constitutional challenges. Odd that a person who had never practiced law, never argued a case, or never held a judicial bench would obtain such a position, but Kagan got it – maybe because she had one important trump card: she was a graduate of Harvard Law, which seems to be a hall pass to almost any position in government.

In her hearing before the Judiciary Committee for Solicitor General, she said she believed foreign law should be used to interpret the U.S. Constitution. Thirty-one Senators voted against confirming her nomination.

In one sense, it comes as no surprise that Harvard graduate Obama would nominate Harvard graduate Kagan to the highest bench in the land, where only Harvard and Yale grads live. At age 50, Kagan has had a breath-taking rise to the top, and if confirmed, will exercise the “last word” in contested law for perhaps the next 40 years.

Despite her privileged life, what has Kagan accomplished? There’s not much of a written trail, but there are some markers of how she thinks about the Constitution she will swear to uphold.

Her Princeton undergraduate thesis was entitled "To the Final Conflict: Socialism in New York City, 1900-1933." In the acknowledgements for this tome she wrote that her brother’s “involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”

Then there’s the Manichean world of Thurgood Marshall under whose spell she fell as a 20-something sitting at the feet of the 80-year-old judicial Gameliel. In his speech on the 200th anniversary of the Constitution’s ratification Marshall opined that the Founders were unwise and "the government they devised was defective from the start …” thus his view of the Constitution was that of a “living” (i.e. evolving) document subject to temporal interpretations. In her panegyric of her former mentor, published in the Texas Law Review, Kagan wrote,” For in Justice Marshall's view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission." To be fair, Kagan does not say that this is her view, but she should be prepared to reveal how swayed she is by Marshall’s “empathy standard” for judging cases.

Finally (because there is not space to discuss more material here) there is Kagan’s pathetic performance arguing the government’s case in Citizens United v. Federal Election Commission. This was a First Amendment argument over the rights of corporations to exercise free speech, in this case an uncomplimentary video on demand about Hillary Clinton that the FEC had blocked as a violation of the infamous McCain-Feingold Act. The appellate court had upheld the injunction, which was appealed and overturned at the SCOTUS level, much to the consternation of Obama who lectured SCOTUS in his SOTUS speech. Kagan’s deputy argued that McCain-Feingold, which bans corporate broadcast ads within 60 days of a general election, could also be used to restrict corporate or union funding of books that advocated the election or defeat of candidates.

Taken aback, Judge Roberts, in a rare move for the Court, called a rehearing to broaden the argument of corporate free speech rights. Kagan began Round Two by saying “the government's answer has changed” on the book issue, to which subdued laughter rippled through the courtroom. At one point Kagan’s bush-league advocacy skills had her questioning the Court, causing Chief Justice Roberts to remind her that in here the judges ask the questions and the advocates answer them.

Then came her erroneous claim that the Court had tacitly ratified expenditure limits “for over a century” on corporation political speech, which brought down the wrath of Justices Kennedy and Scalia on Kagan whom they reminded that the Court doesn’t have its own agenda to troll for laws on which it wishes to rule; someone must first file a complaint. Therefore, the absence of the Court’s disapproval is not approval.

So here’s my question: Obama promoted his selection of Kagan as one who understood "the real world … someone in touch with ordinary Americans … with a keen understanding of how the law affects the daily lives of the American people." Kagan’s privileged membership in the elite circles of career mobility in academia and government policy positions patently fails to square with this pretense.

So why Kagan? Only Obama knows the real answer, leaving us to guess at it.

One guess is that Obama considers the Judiciary to be the junior partner in the tripartite division of power envisioned in the constitutional government fashioned by the Founders. Obama wants a Court that is deferential to the Executive and Congress – the big boys – letting them sort out the tough issues while SCOTUS sits quietly in its second class role. He made this clear in his SOTUS speech. Then when he hinted that Kagan might be his pick, Obama said, “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

When Kagan was announced as his nominee, Obama recalled her role in advocating the government’s position in Citizens United v. FEC, saying "powerful interests must not be allowed to drown out the voices of ordinary citizens." Unless, of course, those powerful interests are the government or are approved by the government. ObamaCare comes to mind.

Kagan’s champions are already heralding her as a consensus builder. However, one Harvard Law professor said she was more of a coalition builder. She quickly learns who is on the right, left, and the center of every issue. While she was the Dean at Harvard Law, she believed she could pull the center over to her side. So knowing where each faction stood on an issue, and where she wanted to go, she would have the two-thirds needed to win. The Harvard Law professor said. “It was not that she won over people after they suddenly saw the wisdom of what she wanted.” She was smart enough to count the votes before calling the question.

Elena Kagan will undoubtedly be confirmed. Oddly some of the same people who felt Clarence Thomas lacked the experience to be a Supreme Court Justice will be untroubled by Kagan’s thin CV.

It then remains to be seen how Kagan figures into Obama’s determination to remake America.