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Kagan, Karlan and Empathetic Judges--Stuntz

My post about Pam Karlan as a potential Supreme Court nominee (see below) got more play than I expected. (I’m always surprised when someone reads something I write. Usually, I think: this can’t be a good use of readers’ time . . .) Which is all to the good: I think Pam would be marvelous in that job. But Pam isn’t the only first-rate candidate under discussion. My former boss Elena Kagan would likewise be terrific. A big part of the reason why goes to an idea that has attracted a lot of attention of late: empathy. 

Most of the talk about empathy and judging is silly. Roughly speaking, empathy means a combination of passion and understanding. Does anyone want Justices who don’t understand how some important piece of the world works? Should we fill the Supreme Court with Justices who are less than passionate about doing justice? These questions answer themselves. In any event, Karlan and Kagan share an important virtue in this regard: both have professional experiences that are unusual among candidates for this job—and both have exhibited the combination of understanding, detachment, and passion that the best lawyers bring to the table. Karlan may be the best voting rights litigator in the country; she knows the world of Southern black politics like few others. (She also knows Bill James. How cool is that?) Valuable as that is, this is more valuable still: Karlan genuinely loves her clients, and she is zealous about the business of protecting and enforcing their rights. Good for her. Kagan knows how a White House works from her time in the White House Counsel’s office under Bill Clinton, useful information for one who sits in judgment of presidents’ actions. More important still, Kagan has run the equivalent of a medium-sized business—and she ran it with a combination of cool-headed detachment and genuine devotion, for the institution she ran and for the people who work here. Good for her too. I’d still pick Pam first, but it’s a close call.

One more observation on this subject: Whenever these openings happen, there is a tendency to root for the appointment of the candidate who most nearly shares the writer’s ideology. That tendency is natural, but it ought to be resisted. All Americans benefit when Supreme Court Justices are high-caliber intellects with a flair for language, characteristics that Karlan and Kagan share. My own politics are center-right, but I want good, smart judges and Justices on the left (where Karlan mostly is) and center-left (where Kagan resides) as well as on my piece of the ideological spectrum. The current Supreme Court does not suffer from too much high-quality ideological debate. More like too little.


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Comments ( 1 )

As I like to put it, as long as the nominee's name starts with "K" and ends with "N," I'm on board!