Sabatos Crystal Ball

The Head and Heart of Elena Kagan

Dahlia Lithwick, Guest Columnist May 13th, 2010


President Obama’s selection of Solicitor General Elena Kagan to fill the seat of retiring Justice John Paul Stevens was hardly a surprise. It was a well known fact that the President’s personal regard and respect for Kagan has been deep and longstanding. But as the carefully orchestrated minuet that will be her confirmation hearings ramps up, a familiar trope will emerge: We know what’s in the nominee’s head. But how can we trust her heart?

This theme was sounded by Senate Democrats at the confirmation hearings of then-Judge John Roberts as one interlocutor after another asked him variations on what I have come to characterize as the “cardiologic” model of Supreme Court Jurisprudence: “Judge Roberts,” they would intone, “Clearly you have a superior legal mind and an extraordinary legal resume, but what’s in your heart?”

Roberts was able to deftly sidestep this type of questioning, with reassurances to Senators Diane Feinstein and her colleagues that his heart functioned perfectly, but also by explaining repeatedly that the heart is not the relevant organ in the judicial project. As “neutral umpires,” in Roberts’ parlance, the only thing that matters to a jurist is the strike zone. And you determine that with your brain, not your feelings.

Again, last year at the confirmation hearings for Judge Sonia Sotomayor, the contents of her chest cavity were relentlessly probed. This time it was Senate Republicans pushing to know whether Sotomayor’s reference in speeches to a “wise Latina woman” reflected a judicial heart that was wildly biased against white men. One GOP Senator after another acknowledged that while her 18 year judicial record was largely unremarkable, they feared that lurking beneath the cool judicial surface was a heart poised to explode into fits of improper empathy and activism.

All in all, it’s safe to say, both sides in the judicial wars have come to use the language of the heart as a means of understanding whether and how a prospective justice will temper her purely intellectual understanding of the constitution with sympathy for certain groups or causes.

Which brings us to General Kagan, who, like Roberts before her, presents as preternaturally cool, moderate, and temperate. This coolness leads Democrats to fear that her heart might be too disengaged from her jurisprudence, and Republicans to fear that she has been hiding a smoking, spitting liberal activist heart under a remote academic demeanor.

Both sides should probably stop fretting. Kagan may be an anomaly in that her heart and head appear to match up perfectly. What you see in her legal analysis is likely to be what she feels deep inside. It’s not that she is cold, she’s said to be charming and affable in the extreme. It’s simply that both her head and her heart approach problems in the same way: She is, at bottom, likely to be exactly the same kind of feeler as she is a thinker.

Start with Kagan’s legal scholarship, which has been described as both thin and abstruse. It is actually neither. While she has chosen to steer clear of hot-button issues for the most part, she is clearly passionate about combining thinking and feeling, or better, marrying pure intellect with an understanding of practical consequences. As First Amendment scholar Eugene Volokh has recently noted, in the free speech context Kagan’s scholarship is both influential and outstanding. Kagan, Volokh writes, typically goes “beyond glib generalizations and formalistic distinctions and deals with the actual reality on the ground.” Her work is rarely prescriptive (“the government should do this”) and instead seeks to create new broad frameworks in which to analyze existing doctrine. She credits good arguments on both sides and borrows from both. Kagan’s natural tendency as a scholar seems to be to analyze, synthesize and reframe. She is far less interested in reshaping the legal landscape than in reshaping the way we think about it.

Students and faculty who have had academic experiences with Kagan at both Harvard and Chicago law schools report seeing the same qualities in Kagan as an instructor, a colleague, and a dean. She is reputed to be cautious, lawyerly, and pragmatic. Her response to the issue of military recruitment on campus in the age of Don’t Ask Don’t Tell has been depicted as radical. In truth she was as careful and expedient as she could be. And as a teacher, Kagan is renowned for her ability to push students beyond facile positions and beliefs. Tales from her classrooms reflect the fact that she was not interested in indoctrinating anyone. She wanted them to think past the doctrine and challenge themselves.

If all this makes Kagan sound very much like Obama himself, it is no accident. Reports of his own teaching style at the University of Chicago are remarkably similar and his leadership style is closer to her eloquent, centrist problem-solver than radical firebrand. It is clear that one of the qualities the President most prizes in both Kagan’s head and in her heart is her remarkable ability to bridge differences, respect opposing viewpoints, and re-imagine partisan problems in ways that are acceptable to both sides. That means that liberals hoping Kagan will, upon her arrival at the court, become a progressive visionary are likely to be disappointed. It also means that conservatives who worry about exactly the same possibility should probably relax. Like Obama, Elena Kagan just is not one to set herself on fire and leap into the fray.

None of this means we are not facing another long, umbrage-filled confirmation hearing with loads of earnest senatorial scrutiny into the secret recesses of the Solicitor General’s heart. But it does mean that senators on both sides of the aisle may have to reconcile themselves to the fact that while the nominee may not wear her hear on her sleeve, the best place to look for it, is in her head.

Dahlia Lithwick is a Senior Editor at where she covers the Supreme Court and other legal issues.