A reader sharpens my point:
The experience of failure, not the embrace of risk, is the missing element in Kagan's biography. You wrote that you were concerned because she had never once taken a risk during her life. That standard recommends Evil Knievel rather than Elena Kagan for the Supreme Court.
What is striking to me is the disconnect between Kagan's life experience and Obama's stated desire to add someone to the court with life experience. Most people I know have suffered from failures and setbacks. Indeed, most people find such adversity to be a path towards wisdom, self-knowledge, self-improvement, and even compassion for others.
Consider, for instance, that Justice John Paul Stevens was shaped by his family's bout with failure and prosecution. Indeed, that experience shaped Justice Stevens' approach to criminal law and federal power.
The greatest figures in American history have overcome failures and adversity. Lincoln lost several political campaigns. Franklin D. Roosevelt lost a vice-presidental election and was afflicted with polio. And though Obama has not entered these ranks, it is notable that he, too, tasted political failure before rising to the presidency.
And Kagan? Nothing but a gilded path. Like the Chief Justice John Roberts – the "compassionate" jurist who supposedly calls ball and strikes but has never experienced being called out – the only "failure" on Kagan's resume is a nomination for an appeals court slot that expired for lack of a Senate vote. Never fired, never rejected, never sick, never (so far as we know) even spurned in her personal life.
The Supreme Court can do without failed people and without mediocrities. But it should not do without people who understand that suffering and setbacks are central to the human experience.
I think the Kagan nomination really rips off the bullshit of the "life-experience" argument that Obama has deployed (and manifestly failed to substantiate in the case of his second pick). Compared with Sonia Sotomayor or Clarence Thomas, Kagan is a very privileged member of a very privileged elite she has done everything she can to placate and flatter at every turn.
My provisional view is that she is, in fact, probably far more left-liberal in terms of enabling the federal government to reshape the lives of Americans than is currently understood. I don't buy Sean Wilentz's argument that she was once fascinated by socialism out of scholarly disinterest. Where left-liberal executive power is concerned, she's Obama's redistributionist enabler over the long run. I suspect she is a calculated check on Roberts – and as radical as he, on the other side. Her family and background are obviously saturated in left-liberalism. She has the chops. But her ultra-caution is an almost text-book case of the quite march through the institutions, beloved of the left whence she comes. That makes a robust grilling of her positions all the more important. After all, she asked for it.
The Dish 