Elena Kagan, Barack Obama, and the American Establishment
22nd July 2010
This article addresses what should be a puzzling question: Why did Barack Obama nominate Elena Kagan to the Supreme Court? Not only has Kagan never been a judge, but, far more problematically, she has over the course of a 25-year legal and political career taken almost no public positions on any significant legal or political questions. This latter fact would, at first glance, seem to disqualify her from consideration for a lifetime appointment to one of America’s most powerful political institutions. That it has not tells us a great deal about deep-seated cultural myths regarding the possibility of separating law from politics, and about the elite institutions that have molded Obama, Kagan, and so many other members of America’s contemporary legal, political, and economic establishment. Ultimately, in one sense Kagan remains, on the eve of her confirmation by the Senate, as much of a blank slate as ever. Yet in another we, like Barack Obama, can venture a good guess regarding what sort of Supreme Court justice she will make. That we can do so reflects both the cultural and ideological power wielded by the elite institutions that are producing the contemporary American establishment, and the relatively narrow range of political views those institutions generate among those who go on to become part of that establishment.