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Justice Elena Kagan: a reasonable person pursuing reasonable purposes reasonably ?

The most interesting question about the Kagan nomination remains this: Why did Barack Obama nominate someone with largely unknown legal and political views to a lifetime appointment on the Supreme Court? Under the circumstances we can do little more than guess, but I would venture that three inter-related factors were crucial. First, Obama himself, as a former president of the Harvard Law Review and University of Chicago law professor, has been immersed in cultural context -- elite legal academia -- which puts a great deal of stock in the belief that being a good Supreme Court justice is largely a matter of technical competence. Legal academia is (quite literally) invested in the idea that being a "good" judge means accepting "good" legal arguments and rejecting "bad" ones, with good and bad defined as the correct and incorrect application of legal rules. This belief is absurd - any case that reaches the Supreme Court can't be resolved merely through the application of legal rules - but its persistence signals how important it still is to American law schools, which remain committed, against all intellectual odds, to maintaining a sharp distinction between "law" and "politics."

Although most legal academics greatly exaggerate the extent to which controversial legal questions can be reduced to technical exercises in formal rule application, most such people, especially at elite institutions, also recognize that technical competence by itself cannot determine the outcome of Supreme Court cases. Yet they have another escape route that allows them to avoid acknowledging that, at the level of Supreme Court decision making, the distinction between law and politics is largely meaningless. That escape route appears whenever such people invoke the need for "good judgment," "common sense," "reasonableness," "sound public policy," and other such phrases that are all shorthand for "the (narrow) range of political beliefs considered acceptable among people such as ourselves." This tendency is captured well in a passage from The Legal Process, the written version of the enormously influential course taught at Harvard Law School by Henry Hart and Albert Sacks in the 1950s and 1960s, which argues that judges should interpret legislation as if it were the product of "reasonable persons pursuing reasonable purposes reasonably." An institution must maintain a high degree of ideological consensus to mask the fundamental emptiness of that sort of advice -- and for the most part elite legal academia has been up to the task.

-- Paul Campos

See also: Now there's the smoking gun! Kagan uses the Socratic method. Surely, this revelation will torpedo the nomination!


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