The Kagan Standard: On Eponyms and the Supreme Court

In 1995 Elena Kagan, then a University of Chicago law professor with (presumably) little inkling that her words could one day be applied to herself, wrote an academic article saying that the confirmation process had become a “vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”

It is “an embarrassment,” she wrote at the time, that “senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.”

Now that President Barack Obama has selected Kagan as his nominee for the Supreme Court, the U.S. solicitor general and former dean of Harvard Law School may be wishing she had not set the bar quite so high.

Kagan’s 15-year-old statements about the confirmation process’s egregious lack of rigor have not exactly gone unnoticed, especially since the fact that she has not authored any judicial rulings means that there aren’t too many other clues for senators and pundits to pore over in an attempt to glean her “views on important legal issues.”

And that means Kagan may just have to live up to what has come to be called the Kagan standard, a term that even Democrats are tossing around. But while Democratic politicians have been wielding the phrase in the course of what The Washington Post referred to as polite “jabbing,” it may also serve as a stimulus for some uppercuts from the other side of the aisle when the confirmation hearings begin June 28.

The Post article quoted Richard Durbin, a Democratic senator from Illinois and a member of the Senate Judiciary Committee, as using the phrase during a get-to-know-you meeting with the nominee last month, during which they discussed Kagan’s 1995 article.

“I asked her about it, and I said, ‘You know, you’re going to have to live by the Kagan standard, which you established,’” Durbin said. “She said, ‘Well, the world looks a little different from this vantage point.’”

The same story quoted Dianne Feinstein, a Democratic senator from California and another member of the committee, as saying she told Kagan, “I trust you are going to be a paragon of exactly the opposite of what you wrote about” – to which they both laughed, Feinstein said.

Conservative legal analyst Ed Whelan, president of the Ethics and Public Policy Center think tank, was not so blasé. “It’s especially important that the Senate hold Kagan to the Kagan Standard,” he said. “Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience.”

Of course, Kagan isn’t the first Supreme Court nominee whose name has made its way into the English language (though it’s too early to tell if “the Kagan standard” will remain a fixture of it). If the Senate were to block her candidacy “by use of sustained public disparagement,” it would be borking her as it did Robert H. Bork, the man who lent his name to the word when, in 1987, he spectacularly failed to secure a seat on the Supreme Court. Indeed, the article in which Kagan critiques the confirmation process began as a review of a book by Yale law professor Stephen Carter, “The Confirmation Mess,” which discusses the battle over Bork’s nomination.

William Safire, in his book “Safire’s Political Dictionary,” describes Bork as an insufficiently deferential, brilliant and prickly adherent of constitutional originalism who believed that Roe v. Wade was, as Bork later wrote, “a radical deformation of the Constitution.”

But the term featuring the name of the current nominee possesses a duality that the verb doesn’t. While the origin of borking (that is, Robert Bork) is the object of the verb (in the terminology in current use, the Senate borked Bork; Bork didn’t do the borking), Kagan is both the initiator of the standard and someone to whom the standard could be applied.

This lexical flexibility doesn’t appear to be all that common. Take another eponymous verb, “bowdlerize.” In that case, Thomas Bowdler is, anachronistically speaking, the subject of the verb; in expurgating what he considered inappropriate fare for a father to read aloud to his children, it may be said with the benefit of hindsight that he bowdlerized Shakespeare’s works in 1818.

Eponymous noun phrases can also lead to confusion about the role of the person behind the term. The Peter principle is so called after Laurence J. Peter, the author (with Raymond Hull) of a 1969 book by the same name that argued that in a hierarchy, every employee tends to be promoted to his level of incompetence.

But the Bradley effect — the theory that black politicians might do worse on Election Day than they did in the polls because voters can’t be counted on to actually pull the lever for the black politician they said they would vote for — is named not after a sociologist or political commentator but after former Los Angeles Mayor Tom Bradley, a black politician who lost the 1982 California gubernatorial election to a white Republican despite having led in the polls by a wide margin. (This theory was dredged up in the last presidential election as analysts wondered, in the words of this CNN headline: ‘Will Obama suffer from the ‘Bradley effect’?)

Perhaps the eponymous word that is most similar to “the Kagan standard” is one that, fittingly, brings Bork into the picture once again. Well, not Bork exactly, but another guy who lent a similar name to a verb. Under the “bork” entry, Safire writes that “to bork” is similar to “to burke,” which he describes as a verb “taken from the name of William Burke, executed in Edinburgh in 1829 for smothering his victims so as to leave no mark on their bodies that would make them unacceptable for anatomical dissection.” The verb, writes Safire, originally meant “to murder someone by suffocation, especially in order to sell the body for dissection,” but has acquired the figurative sense of smothering or suppressing less mortal objects, like books, debates and issues.

And the connection to Elena Kagan? At William Burke’s hanging, Safire tells us, “spectators shouted, ‘Burke him, Burke him! Give him no rope!’” In other words, the crowds were chanting for the Burke standard to be applied to Burke himself. Sound familiar?

Photo by Harvard Law Record