Friday, May 7, 2010

How to Explain Supreme Court Nominations? (or, An Essay on the Art of Becoming Brilliant)

It is beginning to look more and more that Elena Kagan will be President Obama's replacement for Justice Stevens' seat on the Court. This is true in the face of growing skepticism (see, for example, here, here, here, and here) about her nomination. These concerns are outweighed, at least on President Obama's mind, by the notion that she would be "a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions."

The little evidence we have on the Kagan-as-fearless-counterweight view is scant, yet hardly encouraging. In fact, it is the complete opposite. I have in mind here here what James Doty labels her "occasional obtuseness," or what she herself called "panic." The idea that General Kagan would be a coalition builder on the Court while serving as a counterweight to the conservatives justices is nothing more than "unsupported fawning fantasy."

In light of all of this, two questions keep turning up in my head. First, and for all the noise made about Kagan's qualifications, how far would she have gone in her life in the legal academy without the support of critical networks? And second, what does the fact that she is even a candidate to replace Justice Stevens tell us about President Obama's values and priorities, especially in light of his recent call to voters of color to come out and support the party in November?
The first question warrants an explanation. Nobody would question that General Kagan has led an exemplary academic life, from her days at Hunter College High School to Princeton College, where she graduated summa cum laude, and a J.D. from Harvard Law, where she graduated magna cum laude. These accomplishments netted her clerkships with Judge Mikva and Justice Marshall, which she followed with a teaching job at Chicago Law. This is all quite standard in the life of an academic. Where things begin to fall apart is when the story resumes in Hyde Park. While General Kagan was quite good at taking law school exams and writing undergraduate papers, she was not a terribly productive academic (or maybe, for strategic considerations, chose not to). Fact is, she did not write very much, and yet, the Chicago faculty granted her tenure, in 1995.

This is where it gets messy. How in the world did this happen? How does one with such a scant academic record receives tenure at a top-ten law school? This is where privilege and connections kick in. If her story is like that of many others in the academy, perceptions at the point of entry made all the difference in the world. She was hired as a superstar, and that meant that she could do no wrong. If she gave a bad presentation, well, she was still a superstar who just happened to have a bad day. If her first draft of a paper wasn't very good, well, that is because she was tackling very big ideas, and such things are hard to do. And if she did not publish very much, well, that was easy: as a superstar, she was mulling her ideas in her head, giving them time to develop into the Really Big Ideas that they were.

Once the tenure clock ran, she made it through. That means, quite simply, that she was still a superstar, and a brilliant one at that. To achieve the status of brilliance requires a network of people who believes that you are, in fact, as brilliant as you think you are. Without that network, your brilliance might go unnoticed. I think of this kind of brilliance as "group brilliance;" you only achieve it when others say you did. But once you do, you reap its benefits for a lifetime.

Compare in this vein Justice Sotomayor's often insulting nomination hearings. She was the one with the summa cum laude degree from Princeton and fancy Yale Law degree. Curiously, I don't remember the word "brilliant" uttered during the debates around her nomination . I did hear the word "racist" and even "affirmative action." Try to make sense out of that.

But note that supporters of General Kagan use her status as a "brilliant" person only as a back up, and for good measure. There are a lot of brilliant people out there, and they all cannot be on the Court. This is why supporters need more, and this is where her leadership qualities come in, her stewardship of Harvard's tense and divided community. But here, too, facts get in the way of reality.

Boiled down to its bare essentials, the argument is that she was an exemplary dean because she hired a lot of people, including a lot of conservatives. Curiously, she did not hire as many women or people of color. This happened at a time when Harvard Law was a site of much racial tension. Consider also her leadership on the issue of gays in the military and the Solomon Amendment. This is often touted as a time when she in fact took a stand about something. But here, too, her leadership begs a lot of questions. Not that any of this matters. She always had her "brilliance" to fall back on.

How then does one get to be a front runner for the Supreme Court? In particular, how did Elena Kagan become the front runner? One possibility is to appreciate the force of social networks and "the people you know." Those without networks stand no chance. Scholars of color, in particular and as outsiders to the academic world, seldom have built-in networks. You do the math.

This takes me to the second question I posed at the onset. President Obama is quite aware of all of this--the fact that people of color and scholars of color operate at a network-deficit. He went as far as to protest the dearth of faculty diversity while at Harvard. This is why the Sotomayor nomination, standing alone, was remarkable. Here was a total outsider making it in a world that demands connections and strong friendships with the right people. With Elena Kagan, he is reversing himself 180 degrees. Not only is he appointing an insider, but one who, when given the chance, did nothing for people on the outside. That in itself is unfortunate, even heartbreaking.

I write all of this because I think the lessons are too important to miss. All too often, we pretend that advancement in the world hinges on a platonic notion of merit, defined in myriad ways yet often in accordance to one's self-interest. But closer to the truth is the reality that merit is socially constructed. Those who get ahead do so because they are brilliant, and they are only brilliant because we deem them so. It is in this vein that Harvard hiring record under Kagan is unsurprising.

Brilliance is in the eye of the beholder.

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