There Is No Such Thing As a Legal Progressive

At the Kagan confirmation hearings today, Senator Sessions (R-AL) had some tetchy back and forth with the Supreme Court nominee. One of the questions that has been getting a lot of coverage in the media and blogosphere, however, was when Sessions asked Kagan if she was a “legal progressive.”

A what? Legal progressive? What the heck is that?

Is it… a progressive who does law? In which case, of course Kagan is one. But that can’t have been what the term was meant to imply — a phrase like “legal progressive” suggests some sort of theory of jurisprudence, not merely a description of a progressive who happens to have a JD.

When I heard Sessions use the phrase, I blinked a couple times. Which I’m sure Kagan was probably doing, too. And then I tried to figure out what on earth he was talking about.

Legal positivist, legal realist, legal pragmatist, legal formalist, natural law theorist, critical legal studies theorist, legal hermeneutics — I’m pretty familiar with all those, and I could probably rattle off a few more “legal X-isms” if I spent some more time thinking about it. But “legal progressive” I’ve never before come across. So I was sort of relieved when Kagan acknowledged that she hadn’t a clue what it meant, either.

Google seems to agree with me and Kagan. A search for the term does not reveal any web page using the phrase that is not actually in reference to Kagan’s nomination, or else refers to something entirely unrelated. I’ve now clicked through 12 pages of Google results for “legal progressive,” and I cannot find even one that suggests such a pre-Kagan judicial philosophy has ever existed.

In response to Kagan’s semi-confused queries about what he meant, Sessions responded, “Well, it means something, and I would have to classify you as someone in the theme of a legal progressive.” One would think that if the term really meant ‘something,’ and if Sessions knew what this ‘something’ was, he would’ve elaborated. But regardless of what Sessions’ personal understanding of the term is, I am relatively certain that if “legal progressive” had a pre-Kagan meaning, it would have turned up within the top 10 pages of Google results.

Even those using this exchange as proof that Kagan is being deliberately obtuse at best, and a blatant liar at worst, can offer no proof that the term has any academic significance. The original source of the term appears to be Joe Biden’s Chief of Staff, who stated, “Elena is clearly a legal progressive… She’s got a pragmatic perspective.” As best I can tell, the VP Chief of Staff coined the term on the spot, or else was confusing it with Posner-style legal pragmaticism. (In which case, if Kagan truly is one, by all means, hurry up and confirm her!)

But no one has been able to step forward and offer a definition for the jurisprudence of legal progressivism.

Mostly because, well, it doesn’t exist. There is no more a judicial philosophy known as “legal progressivism” than there is one called “legal regressivism.” Kagan was right not to answer the question, because any answer she could’ve given would’ve been factually wrong — someone cannot be a follower or non-follower of a judicial philosophy that has yet to be created.

Hollow and vapid, indeed.