Trimming Your Sails for a seat on the Supreme Court

July 18th, 2013

Ian Millhiser writes a very important piece about the significance of Tom Perez’s confirmation as Labor Secretary. I have no opinion on Perez’s confirmation, but Ian makes several very thoughtful points about the dangers of lawyers avoiding controversial careers, out of a fear that their record will disqualify them from future federal appointments.

In addition to Perez, Ian focuses on the fact that Pam Karlan was never nominated to any position:

 In the earliest days of the Obama Administration, the White House reached out to Pam Karlan, a Stanford Law Professor widely viewed as one of the most brilliant and outspoken liberal legal thinkers in the nation, to ask her if she was interested in becoming a federal judge. Karlan was never nominated.

Karlan, an unapologetic liberal whose candor I find quite refreshing, never had a shot at being nominated because she chose to speak out on the most controversial issues of the day.

Dawn Johnsen and Goodwin Liu, who were nominated but not confirmed, are in similar boats, so far as they chose to be outspoken liberal academics.

Future California Supreme Court Justice Goodwin Liu, another top progressive legal scholar, did receive a nomination to the United States Court of Appeals for the Ninth Circuit, but his nomination never became a high priority for the administration and it ultimately died due to a filibuster. Dawn Johnsen, an outspoken opponent of the Bush Administration’s torture memos who spent five years of her career defending abortion rights and reproductive freedom, met a similar fate after she was nominated to lead the Justice Department’s Office of Legal Counsel.

Ian links to an important speech Karlan gave, in which she said she had no regrets for her decision.

Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime. Sure, I’ve done lots of things I regret over the years. But the things I regret aren’t the things that keep someone from being nominated or getting confirmed. I regret being unkind to people I love and respect and admire. I regret getting frustrated by little things. I regret never taking a summer off. I regret not being able to stick to a diet. But I don’t regret taking sides on questions involving the Voting Rights Act. I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. I don’t even regret being sort of snarky. . . .

[I]n a lawyer, courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.

The image of trimming your sails is very apt.

Shortly after Elena Kagan was nominated to the Supreme Court, I wrote critically of her “thirty-year gamble” to secure a spot on the United States Supreme Court, though I prefer Karlan’s imagery of trimming the sales.

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.

At the time, I didn’t even realize the extent to which Kagan continued to shield herself from any controversial matters, even when working as Solicitor General. As I discuss in Unprecedented, at every juncture, she walled herself off as SG, so she would have no involvement with the Affordable Care Act.

During her confirmation hearing, many Senators repeatedly asked her if she had any involvement with the case. As I wrote in Unprecedented–and based on stuff I couldn’t write–she had absolutely nothing to do with the case. Remarkably so. She knew better.

However, Kagan did not make this error. From an early age, she was very cognizant of where she was headed in life. In her eighth- grade yearbook, Kagan famously posed for a photograph wearing a judicial robe and holding a gavel. She added a quotation from Supreme Court Justice Felix Frankfurter in her caption: “Government is itself an art, one of the subtlest of the arts.” Kagan understood very well the “art of government” and deftly navigated her way through the system: from Princeton, to Harvard Law School, to the chambers of Justice Thurgood Marshall (he called her “Shorty”), to an academic career, to the Clinton White House, back to Harvard Law School, first as a professor and then as a dean, to the Solicitor General’s office, and to her final destination on the Supreme Court. Kagan has a reputation for being uniquely skilled at this “subtlest of arts.” She knew better than to be involved in this case. As Kagan famously told Neal Katyal, “You should do it.” Dahlia Lithwick aptly wrote, “She was at pains to distance herself from this case because it would have looked bad.” Kagan did not recuse.

But the most important question that no one asked her, is why did she have nothing to do with this. She was the Solicitor General. There was no apparent conflict of interest, or reason for disqualification. She was the most important advocate in the United States Government, whom the President entrusted with the defense of federal laws before the Supreme Court. For absolutely no articulated reason, she entirely delegated the case to the able hands of her deputy, Neal Katyal. This is the pivotal question that would offer a window in Elena Kagan’s soul. We all know the answer. She trimmed her sails–really she tied herself to the mast–with her eyes set on docking at One First Street. And it worked.

But what lessons should we take from the parallel plights of Karlan and Kagan. As I wrote three years ago:

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.

Ian makes a similar point:

These incidents send a very clear message to young progressives interested in high-level government service — keep your mouth shut and do not every call attention to your politics. As I wrote shortly before Justice Liu was confirmed to the California Supreme Court, “[a] dear friend of mine chose not to apply for a job at a leading women’s rights organization because she was too scared of the future implications for her career. A talented colleague turned down an offer to do important research on corporate influence on the law because he was scared of leaving a paper trail. I myself once advised someone not to publish an article because I thought it would doom her in a future confirmation hearing. None of these people is over the age of 33.” Since I wrote those words, another, eminently qualified friend told me that she planned to give up her quest for an administration job and “go the full Dawn.” Her meaning was that, now that she no longer wanted a job in government, she was free to be open and honest about her politics — just like Dawn Johnsen.

Don’t live for the confirmation hearing. What a horrible and depressing way to exist. You can never be yourself, or say what you want, or think what you want. Especially as a professor, with academic freedom, there is no excuse or rationalization for that behavior. While there may be a pot of gold at the end of the rainbow, the path there could hardly be worth it.

We should all let our sails fly free, and let your anchor drop where it may.

Or, as the kids say nowadays, YOLO–you only live once.

Update: Adam White reminds me of this article from the Observer, that focused on the Justices-in-waiting, dubbed “The Little Supremes”

None of them will admit that they keep such tidy lives because they think they might someday face a confirmation hearing. It flies in the face of reason to plan to become a Supreme Court justice, they said, noting the role of serendipity alongside merit. All of the Little Supremes said that it would be absurd, preposterous, crazy to plan to be on the Supreme Court now, that it would take an unspeakable amount of hubris.

But sometimes this apparent modesty gives one more than a little occasion to reflect, like Hamlet’s mother, on the practice of protesting too much. “I’m the guy who gets confirmed when the other guy blows up,” said one Little Supreme—who, like many, was too superstitious to be quoted on the record.

“The kinds of people you talked about are the sort of people who woke up on the morning of the Roberts nomination and said, ‘This could be me,’” said one Little Supreme, who would also fit into this category. They “recognized themselves in the career trajectory of John Roberts.”

That’s why Traci Lovitt, 35, a fireplug appellate lawyer who once argued a case before the Supreme Court when she worked in the Solicitor General’s office, said to count her out.

“I think it is an unfortunate reality today that to be a judge, you cannot hold vehement opinions prior to the nomination and confirmation process,” she said. “You can’t be opinionated. You can’t hold views and be loud and outspoken about them. That is something I would never compromise about myself.”

Then there are the academics. It’s not an obvious place to start.

“To be a successful academic, you have to really have a viewpoint—or several viewpoints,” said Mr. Feldman. “And you have to be willing to wade into very controversial issues and take controversial stands on them in order to advance the debate; that’s why you hold the function in society that you hold.”

It’s telling that the major constitutional scholars on either side—Robert Bork on the right and Larry Tribe on the left—haven’t made it to the Big Bench.

The nomination and confirmation process has been kinder to those academics who have studied administrative law, where the issues tend not to be divided along party lines.

One of Kagan’s few articles focused on Admin law.

I should add that I am a huge fan of Justice Kagan. She has surprised me in every respect, and continues to impress. My point is broader, about the steps people take to pursue their ambitions to the high court.