In announcing his decision to nominate Elena Kagan to the Supreme Court, President Obama hailed Kagan’s supposed choice of the Citizens United campaign-finance case as “her very first case to argue before the Court” as solicitor general: “I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Like his State of the Union demagoguery about the Citizens United ruling, Obama’s spin suffers from a few flaws that render it, as Justice Alito might say, “not true.” First, Citizens United only happened to be Kagan’s first oral argument because she chose not to argue any cases last spring and because the Supreme Court teed up the big case for a special session last September. Second, Kagan’s job as SG calls for her to defend the constitutionality of federal laws, irrespective of her legal assessment of or “commitment” to them.
Third, Kagan, in arguing the case, abandoned precedent holding that corporate speech could be restricted because of its distorting — or drowning-out — effects, and she thus paved the way for the Court to overrule that precedent. Indeed, Kagan had criticized that very precedent in a 1996 law-review article.
Obama’s broader populist makeover of Kagan is equally implausible. Dean of Harvard Law School before she became solicitor general, Kagan was educated at Princeton, Oxford, and Harvard and combined a career in legal academia with stints as a Democratic insider in D.C. That’s just the mix of access and influence that would explain why Goldman Sachs would pay her a $10,000 annual stipend to lend her name to one of its advisory committees. But it’s hardly the ideal background for appreciating how the law affects (as Obama put it) the “lives of ordinary people.”
My point is not to object to Kagan’s elite credentials, much less to endorse Obama’s populist rhetoric about the Supreme Court, but rather to highlight the curious chasm between that rhetoric and the reality of the Kagan pick. One explanation for that chasm might be that Obama’s outlook is so shaped by the progressive academic milieu that he sees “ordinary people” — the sort of folks who “cling to guns or religion” — as a species whose real interests are best understood by experts. Or Obama may just be eager to seize any appealing rhetoric that can substitute for his lawless — and politically unpopular — “empathy” standard for Supreme Court justices.
It’s important to recall that Obama’s empathy standard was not some casual aside. Obama — who, as we are so often reminded, taught constitutional law for years at the University of Chicago Law School — elaborated that standard in the carefully prepared Senate floor statement that he delivered in 2005 to explain why he was voting against the confirmation of John Roberts to be chief justice. As Obama put it, the “truly difficult” cases — which would appear to be the cases in which traditional interpretation doesn’t yield the results that Obama wants — “can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In those cases, “the critical ingredient is supplied by what is in the judge’s heart.” Therefore, the empathy standard provides Obama his essential measure of a Supreme Court nominee.