While most of the ‘conservative’ opposition has centered on the typical topics of abortion and double standards, the most insightful has come from a liberal blog complaining that Obama nominated a ‘white’ person to the Supreme Court.
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.
More on “group brilliance” from Fuentes-Rohwer:
For all the noise made about Kagan’s qualifications, how far would she have gone in her life in the legal academy without the support of critical networks?
Nobody would question that General Kagan has led an exemplary academic life, from her days at Hunter College High School to Princeton College, where she graduated summa cum laude, and a J.D. from Harvard Law, where she graduated magna cum laude. These accomplishments netted her clerkships with Judge Mikva and Justice Marshall, which she followed with a teaching job at Chicago Law. This is all quite standard in the life of an academic. Where things begin to fall apart is when the story resumes in Hyde Park. While General Kagan was quite good at taking law school exams and writing undergraduate papers, she was not a terribly productive academic (or maybe, for strategic considerations, chose not to). Fact is, she did not write very much, and yet, the Chicago faculty granted her tenure, in 1995.
Note: Judge Abner J. Mikva, where Elena Kagan began her career, is Jewish and can be considered part of Kagan’s ‘critical support network’
This is where it gets messy. How in the world did this happen? How does one with such a scant academic record receives tenure at a top-ten law school? This is where privilege and connections kick in. If her story is like that of many others in the academy, perceptions at the point of entry made all the difference in the world. She was hired as a superstar, and that meant that she could do no wrong. If she gave a bad presentation, well, she was still a superstar who just happened to have a bad day. If her first draft of a paper wasn’t very good, well, that is because she was tackling very big ideas, and such things are hard to do. And if she did not publish very much, well, that was easy: as a superstar, she was mulling her ideas in her head, giving them time to develop into the Really Big Ideas that they were.
Once the tenure clock ran, she made it through. That means, quite simply, that she was still a superstar, and a brilliant one at that. To achieve the status of brilliance requires a network of people who believes that you are, in fact, as brilliant as you think you are. Without that network, your brilliance might go unnoticed. I think of this kind of brilliance as “group brilliance;” you only achieve it when others say you did. But once you do, you reap its benefits for a lifetime.
How then does one get to be a front runner for the Supreme Court? In particular, how did Elena Kagan become the front runner? One possibility is to appreciate the force of social networks and “the people you know.” Those without networks stand no chance.
Fuentes-Rohwer continues on in this vein in a number of posters, wondering how Obama could have selected Kagan after the selection of his fellow Hispanic Sotomayor. Why would the first black President choose someone widely perceived as ‘white’ and ‘privileged’? The likely answer can be found in another piece of news today showing that Obama’s support amongst Jews has been cut in half, from 78% who voted for him in 2008 to 42% who said they would vote for him today. Around 60% of funding which is obtained by the Democratic Party comes from Jewish sources. Obama can not afford-quite literally-to lose Jewish support. He may not have thought of it directly in these terms, and may have been influenced in this direction by his top pair of advisors, both Jewish, David Axelrod and Rahm Emanuel.
These advisers likely assisted in the creation of Elena Kagan’s ‘socially constructed merit’ via ‘group brilliance’. Kevin MacDonald describes the process:
The last time we went through the Supreme Court nomination process, there was a veritable groundswell of hyperbole for Elena Kagan — so much so that I couldn’t resist writing about it here. The theme is ethnic networking. How else explain the fact that someone with a completely undistinguished scholarly record not only got tenure at the University of Chicago but was appointed dean of Harvard Law School?
She had exactly two publications in law review journals when she got tenure and has done very little since. A record like that would be a tough sell for tenure even in the nether regions of academia, never mind the most elite schools in the land. But now her lack of publications is seen by her supporters as an asset: She has no embarrassing paper trail on controversial issues.
Once again, the same people are hyping Kagan as absolutely brilliant. In a recent Huffington Post article (”Elena Kagan Emerging As Supreme Court Front-Runner“), Charles Fried says, “She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically. … She has quite a strong personality and a winning personality. I think she’s an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person.” Presumably she can also walk on water.
Fried also praised Kagan effusively in the earlier round, along with Laurence Tribe, another Jewish Harvard Law professor. As I noted, “Kagan was appointed Dean of Harvard Law by Lawrence Summers — also Jewish and with a strong Jewish identity. Summers and Kagan covered for Laurence Tribe when he lifted a passage from another scholar’s book without attribution. Ethnic networking is nothing if not reciprocal.
The only thing Kagan has going for her seems to be that important people admire her. She’s good at networking, and it would seem that many of her most prominent admirers are other Jews — liberal and conservative. (Tribe and Summers are liberals; Charles Fried is considered a conservative. Fried was Solicitor General in the Reagan Administration but voted for Obama.) Ethnic networking indeed!
This points to corruption in the Jewish sector of the American academic elite. Kagan’s path to the academic heights of the legal profession and perhaps to a position on the Supreme Court is not based on a solid record of scholarship or any other relevant experience, but on ethnic boosterism from other Jews. As I noted elsewhere, Jews are represented in elite American academic institutions at levels far higher than can be explained by IQ.
While Professor Fuentes-Rohwer intended to assign this label to whites in general, it now applies almost exclusively to Jews. The old WASP networks, which Justice Stevens himself came through from Chicago before being appointed to the Supreme Court over 30 years ago, are gone.
Looking at what passes for ‘brilliance’ in modern America, we can see signs of ‘group brilliance’ every. As MacDonald discusses, Jewish academics praise each others works endlessly. Tedious movies by produced by Jews are proclaimed as ‘brilliant’ by Jewish entertainment critics. Jewish art critics declare the most bizarre forms of garbage to be ‘brilliant art’. Opposition to white racialism has reached such heights of ‘group brilliance’ that ‘ignorant’ has become a synonym in pop culture for whites noticing racial differences. A career hack politician like Joe Lieberman can become the ‘conscience of the Senate.’
Jewish columnist David Brooks describes mundane and boring Jewish columnist Charles Krauthammer as “he’s the most important conservative columnist,” and instead of being laughed at, this line is repeated. Not Ann Coulter, not Thomas Sowell, not Pat Buchanan, but lame ol’ Charles Krauthammer is ‘the most important conservative columnist’, as deemed by ‘group brilliance.’
‘High Art’ as determined by ‘group brilliance’
The lesson we can take away from this is to watch out for not just of what is being said, but who’s saying it.
Update: Kagan’s (mostly jewish) media friends:
For Elena Kagan, this much is true: She has friends in journo circles. Seems like everybody has a “Kagan Connection.”
Most assessments of Kagan begin like this:
“I first met Kagan in the mid-’90s when we were both former law clerks for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit,” wrote The New Republic’s Jeffrey Rosen.
“Supreme Court nominee Elena Kagan and I shared a dinner table once,” wrote Washington Post writer Jonathan Capehart.
“I had her for two classes” at Harvard Law School, said CBS’ Jan Crawford Greenberg. “But she was very challenging, while at the same time very engaging and lively.”
And those are just her periphery acquaintances.
“Elena danced at our wedding in 1986,” wrote The New Yorker’s Jeffrey Toobin. “When my wife, Amy, and I bought our first apartment, Elena’s father was our lawyer.”
David Brooks wrote: “Kagan has many friends along the Acela corridor, thanks to her time at Hunter College High School, Princeton, Harvard and in Democratic administrations. So far, I haven’t met anybody who is not an admirer.”
CQ’s Seth Stern told MSNBC: “I was her student in administrative law class” at Harvard.
And, as Howard Kurtz points out, she was even once a lawyer for the Washington Post.
All of this, of course, makes it weird that the White House would choose this controversial approach in its media unveiling of Kagan.
The one non-jew in the list, Jonathan Capehart, is black.