Legal Commentary

At the radical splinter blog CoOp, Nate Oman has some thoughts about the Kagan nomination.  

As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts?s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.

. . . In Sotomayor?s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into ?ordinary people? outside of her legal expertise.

Not so with Elena Kagan.

There is nothing in her biography to suggest any special insight into the lives of ?ordinary people.? The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General?s office. There?s nothing in there that screams, ?Special connection with the poor and the downtrodden, or even with the middle class and doing fine.? [Kagan] may well be able to see the world from the perspective of ?ordinary people,? but if she does so it is by an act of imagination rather than memory.

None of this will keep folks from lauding Kagan?s ?empathy.? If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is ?Not much.? 

I disagree with Nate on various aspects of his post, and express my disagreements in a (grammatically mangled) comment on that post.  Let me just say here that I think Nate is conflating a few things -- perhaps understandably, since he's not the only one on either side to do so.  The opposite of "parochial" is not "ordinary."  In fact, most "ordinary" people -- strike that: most people in general -- are parochial in their worldviews and experiences.  New Yorkers can be obnoxiously parochial, but then so can most people in most places.  The true opposite of "parochial" for our purposes is "cosmopolitan."  And cosmopolitanism, whether it is a virtue or not, is not generally something that sells Supreme Court nominees, for better or worse.  I don't know whether Kagan is genuinely cosmopolitan; indeed, one of the things that makes New Yorkers' parochialism sometimes uniquely off-putting is that they wrongly believe themselves to be cosmopolitan.  But the last two nominees I can think of who probably most fit the "cosmopolitan" profile were Stephen Breyer -- and Robert Bork.  One was confirmed, one was not; but in neither case did many people say, "We should confirm him because he's cosmopolitan, not provincial."  

In any event, empathy is a somewhat distinct matter from being parochial, "ordinary," or cosmopolitan.  It's a virtue that requires practice and inclination, not mere background.  I don't know whether Kagan is empathetic or not, and I'll leave the question of whether it matters to my comments on Nate's post.  But growing up on the Upper West Side doesn't guarantee that she's not, any more than growing up near a farm silo would guarantee that one is.