By now, we are all familiar with the criticisms of Elena Kagan as a candidate for the Supreme Court. Her few academic writings reveal little about her beliefs. Her only substantive position is her signature on an amicus brief attacking the Solomon Amendments and Don’t Ask, Don’t Tell.
I don’t think she is some kind of Manchurian Candidate or sleeper candidate. She was a clerk for Justice Thurgood Marshall, worked in the Clinton Administration, and was selected by President Obama to be Solicitor General. More likely than not, she will be left-of-center. But she is largely unknown. No one really knows what she thinks.
But I’d like to focus on how and why Kagan stayed quiet for so long.
It seems every effort Kagan has taken over the past three decades was made intently, and with a focus on not generating any paper trail. She had her eyes on the SCOTUS prize, and worked towards that goal.
In short, Elena Kagan’s gamble paid off. How so? In order to flourish as an academic, one must produce scholarship that distinguishes oneself. Kagan chose not to do that, and succeeded nonetheless. For an academic, that is an awfully difficult feat. Kudos to her. She played her cards flawlessly.
But what message does Kagan send to other aspiring Judges? Be quiet, keep your nose close to the ground, and don’t make any splashes. But if aspiring academics heed that advice, they take the very strong risk of sabotaging their candidacy. Playing it safe will often inhibit an academic from writing significant scholarship that makes a mark in the literature. These are the articles tenure is made of.
Kagan managed this thirty-year tight-rope walk nearly flawlessly. But can others pull it off? That is, can others become extremely successful without saying anything? Unlikely. Especially in the modern era of blogs and twitter. Going forward, everyone will have a footprint.
Kagan may be the last unknown nominated to SCOTUS. Only time will tell if her dedication to saying nothing was worth it.