My question and concern is not because Kagan has never been a judge before; although judicial experience has been customary in recent decades, it’s not always been a prerequisite (indeed, some of the most prominent and successful Supreme Court judges were not judges beforehand). No, what’s more puzzling is the lack of a written or public record. Legal experts appear on the media to tell us that she has a “brilliant” legal mind, but she has published few articles, especially by top academic standards. What's more troubling, she doesn’t seem to have ever publicly expressed an opinion on an issue. While dean at Harvard Law she hired a few conservatives and spruced up the dining hall, but did not utter a word that was in the slightest controversial or noteworthy. It’s not that she is middle of the road – she’s not on the road.
Many have praised President Obama for nominating Kagan. In particular, it is believed that selecting a candidate without a track record means that her views cannot be challenged, and that consequently she will sail through the confirmation process. And so far it appears to be working, as few Republicans have indicated they will challenge her.
I understand that being “judicious” – that is, dispassionate and even-handed – is a key qualification. The appropriateness of a Supreme Court judge’s appointment shouldn’t be assessed according to whether the candidate has the “correct” views. But there is something anti-democratic about Obama and company not bothering to tell us, the people, much of anything about who we’ll be getting as the next Supreme Court justice. It is as if they think we don’t need to know.