The Kagan Nomination as a Lesson on the Social Construction of Merit

President Obama has made his choice and, unsurprisingly, Elena Kagan won the Supreme Court derby.  To many people on the left, this is now the end of the discussion and time to rally around Obama's choice.  But this would be misguided on many fronts. The lessons of the Kagan nomination are almost endless.

For example, consider what the nomination teaches us about the Supreme Court appointment process and the power of networks.  To get ahead, one must have the right friends, positioned in the right places.  Consider also how liberals and progressives lost the fight over the Supreme Court long ago (see here and here).  "Conservative" justices are by definition paragons of judicial restraint, strict constructionists who interpret the Constitution as written, not as they wish it to be; "liberal" justices, of course, do exactly the opposite.

Far more important is how the Kagan nomination helps us understand the social construction of merit.  While we carry on as if the twin concepts of merit and qualifications have objective, platonic qualities, the reality is far from that.  The Kagan nomination underscores how mushy and malleable these concepts are.
In order to appreciate this claim, think first about the qualifications for the position of Supreme Court justice.  Above all things, I suppose that one must have a "brilliant legal mind."  That aspect of the applicants resume, one would think, should be non-negotiable (we know this is not true, and a cursory look at the Court's present membership should be enough to prove the point, but that's a subject for another day).  Beyond that, the nominee must have the right credentials, the right politics and, since the nomination of William Rehnquist to the Court in the early 70's, judicial experience.  In recent weeks, we have added "coalition building" to the set of necessary credentials, as well as a lack of a public record.  We have also reversed course on judicial experience; what was once an asset now appears to be a liability.

In the end, it is not clear which one of these qualifications rises above all others.  But that is not important.  Far more interesting is the fact that these qualifications rise and fall as needed.  If a nominee has no judicial experience at all, and her scant record in court is hardly awe-inspiring, well, it matters not, because she is "brilliant."  If her publishing record is scant at best that does not matter, because, well, she is still "brilliant."  Note that at this stage, one needs not to prove the truth of the assertion.  A person is brilliant because enough of her close friends and acquaintances say so.  I have referred to this phenomenon as "group brilliance."

The point is that merit can become whatever we need it to become.  A nominee's "brilliance" takes precedent because it is so easy to assert and so hard to refute. Same with the "coalition-building" skill often discussed.  The point is not that the nominee is or is not a terrific coalition-builder.  Rather, the point is that this becomes a qualification for the highest judicial office in the land because it fits a current need, because somebody, somewhere, decides that it must be.  What counts as "coalition-building"?  That is not totally clear. But it might be important to have the benefit of a few close friends and connected insiders,  people who can vouch for you.  This is to say, merit, while it might have many attributes, it is, at least in important part, socially constructed.

Call me naive, but based on how conservatives carry on about merit when it comes to hiring people of color and admitting them into our schools, I was starting to believe their stories.