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Elena Kagan, "Pragmatist"


One of the main problems with confirmation hearings is that it's almost impossible to pin down the nominee to specifics, and even if it could be done, there is no way to hold her, once confirmed, to what she said.  Still, it's not entirely a charade; "mirage" is a better description. 

As the ever-insightful Ed Whelan observes on NRO's Bench Memos:


Kagan's repeated refrain [in response to questions about President Obama's empathy "standard"] that "It's law all the way down" is a nice-sounding proposition, but there's nothing in the judicial philosophy that Kagan has so far expressed that supports her assertion that her approach would be constrained.  In other words, if what Kagan considers "law" (i.e., legitimate legal resources) includes, say, the sort of vacuous philosophizing encapsulated in the proposition (see This Day for June 29, 1992) that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," then there's no limit to the results that she could reach. 


Kagan describes herself as a pragmatist.  Again, that sounds nice (as though the alternative is to be unpractical), but what she means by that is that she'd be free to pick and choose in the vast majority of cases among a range of interpretive methodologies.  Unless that choice is guided by a higher principle (and Kagan suggests none), Kagan's approach is so malleable that it would enable her to reach whatever result she wants on the most momentous constitutional questions. 


It's not a meaningful answer to this criticism to assert (as now seems to be the fashion) that judging involves judgment.  If that judgment is ad hoc, rather than guided by principle, it's merely a disguise for judicial willfulness.


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