Professor chooses professor. That’s one headline you could write about Barack Obama’s nomination of Elena Kagan to the Supreme Court.
Obama graduated from Harvard Law School in 1991, Kagan in 1986. Kagan joined the faculty at the University of Chicago Law School in 1991 and became a full professor there in 1995. Obama taught constitutional law there, though he was not formally a professor, from 1992 to 2004.
They have other things in common. Unusually for top law students who go on to teach law, they have published little: Kagan has written just five law-review articles, Obama none.
Nor, from all the accounts we have, has either of them expressed, even in conversation, opinions on many burning legal issues. That should be just a little embarrassing for those Democrats who expressed disbelief when Clarence Thomas said he had not opined on the rightness of Roe v. Wade
Both Obama and Kagan also earned reputations for being respectful of the views even of conservatives. Candidate Obama had the gift of fairly stating others’ positions in ways that moved them to think he actually agreed with them. As dean of the Harvard Law School, Kagan hired conservative scholars and gave welcoming speeches to the conservative Federalist Society.
Reporters have unearthed some of their writings in college that sound sophomorically left-wing — but, hey, they were sophomores then, and you won’t find many such utterances later in their careers. Obama’s autobiographies carefully avoid statements that might have proved politically toxic later.
This stealth strategy has certainly paid off: Obama is president, and Kagan is solicitor general and looks like a cinch to be confirmed for the Supreme Court.
But behind their careful avoidance of incendiary-issue positions, one can find evidence that both the appointer and the appointee share the standpoint of the professor. They bring to public service attitudes that are commonplace in the faculty lounge but not nearly so common in the rest of America.
Consider Obama’s constant calls for civility — starting with his 2004 Democratic National Convention speech — and his harsh characterizations of those who oppose him on issues. The candidate who talked of his eagerness to listen to others, “especially when we disagree,” is the president who in a commencement speech laments that through blogs, cable TV, and talk radio, “even some of the craziest claims can quickly gain traction. I’ve had some experience in that regard.” Some Obama fans have taken to calling disagreement “sedition.”