Paper never dies

recently described Elena Kagan ’81 as “cagey.”

It is true that Kagan has an even thinner paper trail than most recent Supreme Court nominees. Brooks was able to find five scholarly articles that she’s published. Five. Many of the professors whom I know well at Princeton have published five books. I have no cause to doubt that she’s a fine administrator, but I do wonder how she managed to win the prized position of dean of Harvard Law School.

Brooks thinks that there’s a certain type of student who flourishes at America’s elite colleges: People who know to keep their opinions to themselves. This approach, Brooks thinks, eliminates creativity.

He’s definitely right to think that there’s a certain chilling effect among lawyers who want to become federal judges. The last nominee to the Supreme Court who thought that his confirmation hearings were an opportunity to teach legal philosophy to the Senate was Robert Bork, whose name is now a verb. Bork was probably the most honest judicial nominee in the past 20 years or more. Senate hearings are not a place where Supreme Court nominees ordinarily express their judicial philosophies, other than by using language so uncontroversial that C-SPAN could safely be aired on Sesame Street. Nominees since Bork have routinely claimed — with extreme implausibility — that they really don’t know how they would rule on so controversial an issue as Roe v. Wade. They claim to have no difficulty with the principle of stare decisis — which loosely translates as “don’t upset the apple cart,” and which also applied to Plessy v. Ferguson, where the justices upheld “separate but equal” Jim Crow laws. These issues might come before the court again, and the nominees couldn’t let themselves be prejudiced: prejudge the decision. This makes the nomination hearings about as edgy as a spork.

I’m not convinced that edgy hearings are really what we want — sparks flying and senators shouting. There’s a history of brawls in that chamber, and the late Sen. Ted Kennedy’s famous “Robert Bork’s America” speech really was an outrageous piece of spin and hype. I’m quivering in my boots at the thought of what he might have done with my column about Wikipedia. (For the record, that was a bad week for me. Mea culpa, mea culpa, mea maxima culpa.)

For me, the ultimate standard in caginess is Robert Bolt’s depiction of Thomas More, who is represented as so extremely legalistic that even though all Europe knows he disapproves of the king’s marriage, hard evidence of that opinion is nonexistent. Sometimes caginess is simply the result of incentives, like human resources departments grown Internet-savvy or Senators twisting words out of order. When was the last time Brooks wrote something that wouldn’t have gone down well with a glass of sherry at the University Club? Social liberalism and economic conservatism are hardly radical in Midtown Manhattan.

The New York Times recently ran an article observing that 20-something Americans were starting to learn to lock up their Facebook profiles, especially when their employers send friend requests. For all the current hype about the modern erosion of privacy, it may be that a backlash is starting: Everyone less famous than Lady Gaga does not want to show up on YouTube in a homicidal fanfic slash-fest. We’d rather make anonymous posts on PrincetonFML, praising ourselves for getting “totally wasted.” And even Lady Gaga triangulates: Note her famous valediction, “Bless God and bless the gays.” Red state, blue state: Everyone’s covered.

President Barack Obama rose to the top of the political pile on a speech that precisely denied the red state-blue state dichotomy. If anyone’s the Organization Kid, it’s him — except for that moment with guns and religion, and we all know how that turned out. The most controversial plank in his platform was a plan to extend health care to the poor. It came with the blessings of every nun in America, and was mostly lifted from Mitt Romney’s playbook. No wonder Obama chose a nominee who may have even less political baggage than John Roberts. There are unsubstantiated rumors that Kagan is a lesbian, but even this could eventually work to Obama’s favor: If Kagan is gay and she does come out, the president can plausibly claim to have nominated the first lesbian to the court while simultaneously offering steadfast opposition to gay marriage. Triangulation again.

If Kagan does get past the Senate and is confirmed to serve the court, it will be precisely because she was (comparatively) young and an enigma. If we want to know how nominees really think on matters of controversy, we’ll have to start letting them speak their minds without fear of being voted down, which would be tantamount to stripping the Senate of its confirmation powers. And I’m not sure that anyone is yet prepared to go that far.

Brendan Carroll is a philosophy major from New York, N.Y. He can be reached at btcarrol@princeton.edu.