The Judicial Meritocracy Marches Forward

Matt Yglesias says the only thing, I think, which really needs to be said about Elena Kagan's rise though the judicial hierarchy:

I think the clear similarity is between Kagan and John Roberts, both the very models of a modern Supreme Court justice. The key things you want in a justice are someone who is (a) young, (b) ideologically reliable, and (c) easily confirmable. That points to someone who, like Roberts/Kagan has had a meteoric career rise due to the deliberate patronage of powerful politicians without assembling much of a public record on contentious legal issues.

You might think, as I do, that this is a dumb system. If it were up to me, Supreme Court justices would serve fixed terms and the only people eligible for a nomination would be experienced appellate judges. But we have the dumb system we have, and Kagan is, like Roberts, a perfect candidate given the system....

When Roberts was put forward, you had certain BSy efforts to scrutinize his record or “temperament” and discover he was like such-and-such but it was perfectly obvious to anyone with common sense that he’d vote like an orthodox conservative Republican. Similarly, it’s perfectly obvious that Kagan will vote like a mainstream Democrat, with all the plusses and minuses that implies....[I]n principle it would be nice to see presidents nominate people with meaningful public records we can scrutinize, just as it would be nice for nominees to give real answers to questions at their hearings. But presidents and nominees respond to the incentives in our flawed, centuries-old system.

I'm not quite as cynical as Matt here--as I've argued before, I don't care for a politically powerful judiciary, as I see that as deeply undemocratic, and so frankly I'd rather it not be especially important that the people who end up on the court have extensive real-world judicial experience that we can all scrutinize, argue over, and presumably attempt to align with whatever political projects or goals we prefer. Given that what I'd really like to see is a judicial environment where the implications of Marbury v. Madison were radically limited and the Supreme Court was constitutionally obliged to play a far smaller role in our polity, the notion of having a Supreme Court justice whose exposure to the law is overwhelmingly academic doesn't necessarily bug me. [Slight update, 12:00pm CST: In other words, I'm not saying that I necessarily prefer nominees with slight or opaque records, but rather that I wish we lived in an environment where slight or opaque records would be something of a non-issue, because the Supreme Court wouldn’t be that powerful, rather than in the environment we actually live in wherein, because the SC is so powerful and politically contested, weak or opaque records become an actual political plus for strategic political operatives...or for that matter, who knows? Perhaps canny, ambitious lawyers themselves.]

But of course, these preferences of my own also lead me around to some of Matt's claims as well--the idea of fixed as opposed to lifetime terms, for example, makes good sense to me. And overall, what he says about the judicial meritocracy, and the exceptionally narrowing process it has on "good" candidates for the court, is simply dead accurate. In the end, Kagan, assuming she is confirmed (and she probably will be; you can't imagine that Obama's people hadn't already counted out all the votes as far as they possibly could into the future before they came to this decision), will be a reliable, smart, acceptable liberal voice. The last great surprise on the Supreme Court was David Souter; no one, of either party, very reasonably, wants to hand the keys to an institution this powerful (unfortunately) over to someone who isn't going to decide things about as predictably as reason allows. For those of us who want something different...well, the problem begins, as always, with the process and the context, not the candidates themselves.