Not Good Enough (UPDATED)

I'm not an attorney (although I was married to a very nice one for a time, which is why I still have dreams of being chased through a deep forest by the excited utterance exception to the hearsay rule) but I do understand how human institutions operate reasonably well, which I why I find most of the arguments around the nomination of Elena Kagan to the Supreme Court to be so tragically funny.

For example, while I wholly agree with all of the objections Glenn articulates here (and would love to see more of our "Serious" teevee pudding-pushing pundit class thrown into the streets in favor of clear, intelligent debaters) --

-- I also cannot help but think that he is praying to the wrong God. Everything that is wrong about our current political institutions is the result of the decisions made by the men and women who run those institutions.

In other words, the D.C. Supreme Court sausage machine has been carefully built and calibrated to produce one-and-only-one kind of sausage; if the raw material fed into the hopper is off by so much as two or three cultural or political micrometers, the machine will destroy the nominee. Everyone fucking well knows the rules, and both sides play the game very differently (from Digby):

Could this phenomenon possibly be related to the fact that the Republicans nominate radical wingnut freaks and Democrats nominate middle-of-the-road centrists with no discernible judicial philosophy? That one Party relishes a fight and the other runs from one?

Whatever it is, I think we can rule out that it's because the Republicans are more cooperative.

I for one would welcome a fight. Or detente. Or a level playing field. But what Liberals are no longer willing to do is unilaterally disarm in an attempt to play nice with demonstrably despicable and insane people. This, I would argue, is the single political and cultural factor that has well and truly changed in the last 25 years: the reluctant realization on the part of the great majority of Liberals that the Right really is just plain mad-dog-crazy, that they are no longer capable of being moved away from the abyss by any means short of a crude, continuous form of kick-them-in-the-balls-until-they-say-"Uncle" Skinnerian conditioning, and that the only way to mete that out is with the kind of smashmouth politics with which Liberals have traditionally been very uncomfortable.

That being said, let’s consider the Mystery of the Shifting Metrics!

Our story so far…

Renowned Reasonable Conservatives, David Brooks and Andrew Sullivan, both claim to have deep, principled reservations regarding the nomination of Ms. Kagan, which has so far manifested itself like this...


From Sullivan here:

The Purity Of Her Careerism
11 May 2010

David Brooks' column today really helped crystallize for me my qualms about Elena Kagan. Her life, so far as one can tell, is her career, and her career has been built by avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other, pleasing every single authority figure she has encountered, and reveling in the approval of the First Class Acela Corridor elite. The NYT profile - which is superb apart from its editorial decision to excise any account of any non-trivial private life (she smokes cigars!) since high school - is chilling in its assessment of a human soul in steady, determined pursuit of approval and power.
...

And here:

Harvard's Blank Slate To Rule Over Us

...In Kagan, it seems to me we have reached a new level of utter blankness. Her entire career has been about never taking a stand on anything of any substance - free coffee for students! - while networking in a way to neutralize any conceivable opposition.
...

But I'm guessing. We're all guessing. None of us has a clue - including those who say they are close to her. There are so many things we don't know about this person about to get enormous power over us for life. Which is why I have so far found this nomination so disturbing.

And from Bobo here:

What It Takes
By DAVID BROOKS

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

If you listen to people talk about Elena Kagan, it is striking how closely their descriptions hew to this personality type.
...

I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

And here "Our Crazy Supreme Court Nomination Process":

"The result is you get a set of incentives that impairs the careers of brilliant but flawed or prolific people. It rewards the careers of bland mediocrities."

Got all that? A person who understands the game and calculatedly barbers their career in pursuit of winning it is, in Bobo's and Sullivan's collective estimation, "disturbing", "depressing", "chilling", an "utter blankness" and a bland mediocrity.

Now, bearing that in mind, let us consider the brief Supreme Court career of one John G. Roberts: the ultra Conservative Chief Justice who, during his confirmation hearings, famously swore an oath to humility and to use the bench to do nothing more than "call balls and strikes"...and who has since issued one radical decision after another, including overturning 70 years of precedent by pulling a Constitutional right to Corporate Personhood right out of his ass.

In other words, Roberts -- the Wingnut Candidate from central casting -- pretty clearly lied outrageously and repeatedly during his hearings to get his gig as Chief Justice of the U.S. Supreme Court. Of course, if Roberts were a Liberal or even a Moderate I have no doubt that Republicans would be trying to attach impeachment amendments to every piece of legislation in Congress, but since he is a Conservative who lied in furtherance of the radical Conservative agenda, that appears to be perfectly OK with the Right.

But let us get back to the Mystery of the Shifting Metrics!

If you are a Liberal, you probably remember that, at the time of his nomination, there was some considerable bitching from the Right that Roberts was a blank slate, whose opinions on important matters had been kept carefully opaque. (if you're a Conservative, I take it for granted that you can't remember anything that happened before January 20, 2009). One typical example of that concern is found here:

President Bush announced his nomination of John Roberts for the Supreme Court of the United States this evening. Roberts worked for William French Smith in the Reagan administration, clerked for Justice William Rehnquist, and argued 39 cases before the Supreme Court. Roberts is 50, and has an impressive resume.
...
Republicans have tried the blank slate route before. That's the Supreme Court pick whose opinions are unknown--perhaps even to himself. What did it get the GOP? David Souter, for one. President Bush has twice been elected president, and his party controls 55 Senate seats. If he really is a social conservative--let's face it, this is all about Roe v. Wade--why should he operate from a position of weakness and nominate a consensus candidate? While Roberts is neither the consensus candidate nor 2005's David Souter, his views on Roe v. Wade, at least, are unknown.

In fact, from his choice of schools, to his age, to his stint as Solicitor General, to his scant public record, to the nature of his personal and collegial relationships, Roberts' stage managing of his own career in the direction of the high court with the precision of a topiary gardener is eerily similar in almost every particular to that the Elena Kagan. And had her nomination to the federal bench by Bill Clinton not been killed by Republicans

On June 17, 1999, President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley, who had taken senior status in 1996. The Senate Judiciary Committee's Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton's term ended, her nomination to the D.C. Circuit Court lapsed, as did the nomination of fellow Clinton nominee Allen Snyder.[17]

Kagan would have by now logged a few years on the federal bench, making her resume almost perfectly identical to that of court's current Chief Justice at the time of his nomination.

So given the startlingly close parallels between Roberts and Kagan -- and the unambiguously clear objections to Blank Slatism that both David Fucking Brooks and Andrew Sullivan have articulated -- you might very well assume that, unless they are both just shamelessly HUGE fucking hypocrites, these Stalwarts of Reasonable Conservatism would of course have been be on the record in 2005 with virtually the same objections to Roberts that they have to Kagan


in 2010.

You would, of course, be wrong.

3..2..1...

Sullivan from August, 2005 (emphasis added):

...Roberts helped out on a fascinating Supreme Court case for his firm. It doesn't tell us how he'd rule on, say, Lawrence vs Texas. My guess is that as an educated man of his generation, he's well aware of gay people, doesn't approve of discrimination, but has a very limited idea of what the constitution can do to protect minorities. I learned more from the reaction of people like James Dobson. For Dobson, any hint of sympathy for homosexuals is anathema. Roberts is a better man than that. And from everything I've read, is a superb choice for SCOTUS.

Sullivan from July, 2005 (emphasis added):

Right now, Roberts seems to me to be an extremely shrewd and defensible pick: federalist in instinct, prosaic in judgment, factually-astute, a conservative defender of judicial restraint. If a re-elected Republican president cannot get such a man confirmed, something has gone terribly wrong with the system. Obviously, we all have to wait for the hearings and any new revelations before making up our minds definitively. But I'd say it's inspired for being so uninspired, which is a pretty good definition of political conservatism at its best.

But compared to Bobo's nauseatingly ooey-gooey July 21, 2005 paean to John Roberts

Sullivan's assessment looks positively stoic.

Seriously, if you don't remember it, Bobo's sonnet was truly such a completely off-the-charts public mancrush blowjob of a column, that I can't stomach reprinting the entire thing.

So grab your sick bag and wade in up to your ankles.

If you dare:

A Competent Conservative
By DAVID BROOKS

Roberts nomination, how do I love thee? Let me count the ways.

I love thee with the depth and breadth and height my soul can reach. I love thee freely, as men strive for right. I love thee because this is the way government is supposed to work. President Bush consulted widely, moved beyond the tokenism of identity politics and selected a nominee based on substance, brains, careful judgment and good character.

I love thee because John G. Roberts is the face of today's governing conservatism.
...

Roberts is a conservative practitioner, not a conservative theoretician. He is skilled in the technical aspects of the law, knowledgeable about business complexities (that's why he was hired to take on Microsoft) and rich in practical knowledge. He is principled and shares the conservative preference for judicial restraint, but doesn't think at the level of generality of, say, a Scalia. This is the sort of person who rises when a movement is mature and running things.

I love thee also, Roberts nomination, because now we probably won't have to endure another bitter and vulgarized chapter of the culture war.
...

This is going to be the first Supreme Court confirmation battle of the age of the blogger. Already the liberal interest groups, amplified by the blogs, are rolling out the old warhorse rhetoric. Already they've begun distorting Roberts's record, selectively quoting from his opinions and insisting the Senate maintain the balance of the court (which never matters when a Democrat is president).

I suspect the Democratic elites would rather skip this fight because it has all the makings of a political loser.
...

But the Democratic elites no longer run the party. The outside interest groups and the donors do, and they need this fight. It's why they exist.
...

In short, I love thee, Roberts nomination. President Bush has put his opponents on the defensive. He's sidestepped the culture war circus. And most important, he's shown that character and substance matter most.

Yes, he really did rub out this giddy 800-word load of high-school-hots-for partisan jizz into the Op Ed pages of the New York Times because they pay him to do that.

And yes, as usual, it turned out that he got just about everything wrong.

And, yes, he still has his sweet-sweet gig as the Reasonable Conservative at the Times. And at NPR. And on the "Chris Matthews Show". And on "Meet the Press". And on PBS.

Also too, Sullivan kept his suite at "The Atlantic", as well as his guest privileged on all the usual teevee shows.

Because there is a Club.

And if you're in it, there are apparently no series of public failures and fuck-ups large enough to get you kicked out.

Ah...but if you are not in it, then even the tiniest and most innocuous error can get your career suddenly and terminally kneecapped.

Which is one of those brutal facts of life that has clearly not been lost on either John Roberts or Elena Kagan.