During the summer after I graduated law school, I spent some of my free time following the confirmation hearings of Elena Kagan, Obama’s second nominee. During one question and answer session, Republican Senator Lindsey Graham asked her what she thought of Miguel Estrada, a failed conservative judicial nominee from 2003. Specifically, Graham asked her about Estrada:
“Do you think he’s qualified to sit on the appellate court?”
Kagan, an appointee by a Democratic president, did not hesitate to respond.
“He is qualified to sit as an appellate judge. In fact, he’s qualified to sit on the Supreme Court.”
Truthful answer? Or telling the Senator what he wants to hear?
It always surprises me when lawyers and judges who come from divergent political backgrounds come together to support one another. I was reminded of this tendency again, about a month ago, when I read this New York Magazine profile of the highly respected appellate lawyer Paul Clement. (He was the one who destroyed Solicitor General Don Verelli at oral argument regarding the Affordable Care Act.) I was particularly struck by this particular quote:
“He refuses to reveal his personal views about gay marriage, or about any of his other politically charged cases, and insists that he is motivated solely by a lawyer’s duty.”
That, I think explains why liberal lawyers and conservative lawyers often respect one another. This is rather unlike lay people who often can’t stand those who have differing political beliefs.
Institutions all have certain beliefs and assumptions shared by all members. For lawyers, there is this idea that it’s that the reasoning, not the conclusion, that matters. That is, even if your adversary comes to a very different conclusion than you do (say, about the constitutionality of Obamacare) you can still respect her if she makes the right arguments.
My theory is that that’s why so many of the best lawyers end up respecting one another, while in the political arena, rivals are often at each other’s throats. In politics, it’s all pragmatism. Who are you for? Who are you against? Is your position going to help me or hurt me? But in law, your conclusion is less important than how you got there.
At first, I thought Elena Kagan was just telling Senator Graham what he wanted to hear, so that she’d be confirmed. But I think I was wrong. Lawyers who are ideological enemies can be friends. I now think that she was being completely genuine. I suppose I shouldn’t have been surprised to have found this line in the article:
Not long before Elena Kagan was appointed to the bench, she went with Clement to a Green Day concert.