Elena Kagan and the case for an elitist Supreme Court

The announcement of Solicitor General Elena Kagan’s nomination to fill the US Supreme Court seat being vacated by Justice John Paul Stevens has prompted a familiar complaint.

Ms. Kagan, so the argument goes, is a member of a small, well-educated elite; and as a product of the best schools, she is unrepresentative of the vast majority of the American people.

Arguments such as this one surface with some regularity in American politics, and it’s most often heard as a cry from the right.

Elena Kagan: What question would you like to ask her?

However, today’s conservatives would do well to refresh their memories and take a few cues from such luminaries of American conservative thought as

Alexander Hamilton or John Adams. Indeed, criticism of Kagan’s elitism sounds more like the complaints of the Anti-Federalist opponents of the Constitution than they do its Federalist defenders.

Among the fears raised by the Anti-Federalists more than 200 years ago, two recently revived during the debate over the Kagan nomination stand out:

If Kagan were approved, the new federal government would be dominated by the well educated, and the federal courts would be populated by judges of a legalistic caste of mind out of touch with the lives of ordinary Americans.

These arguments were taken to their absurd conclusion in the New York State constitutional ratification convention in 1788.

As one Federalist wrote about his Anti-Federalist opponents, “the gentleman, sensible of the weakness of this reasoning, is obliged to fortify it by having recourse to the phantom aristocracy.”

If government were not to be populated by citizens drawn from the ranks of “the wise, the learned, and those eminent for their talents or great virtues,” who would be fit to serve? The most famous, or perhaps infamous, invocation of this Anti-Federalist idea in modern American politics occurred when Richard Nixon nominated Judge G. Harrold Carswell of Tallahassee, Fla., to the Supreme Court in 1970.

In response to attacks on Carswell’s qualifications, US Sen. Roman Hruska of Nebraska rose to reassert the Anti-Federalist vision of politics. “Even if he were mediocre,’’ he asserted, “there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.’’

The Federalist Founders, it is important to recall, were drawn from a very small elite. They were champions of the ideal of natural aristocracy. Indeed, the very best among them were emblems of this ideal.

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