Career Lessons from Elena Kagan vs. Richard Posner

Consider the career paths and attitudes of two of the most prominent legal scholars in America.

Kaganhead Elena Kagan, recently nominated to the Supreme Court, according to profiles has been carefully plotting a career since, well, forever. Her youthful dream was to be a Supreme Court justice. At 17 she posed for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter. She relentlessly worked toward this goal in her adult life, knowing what she would have to do to get there. "She was one of the most strategic people I’ve ever met, and that’s true across lots of aspects of her life. She is very effective at playing her cards in every setting I’ve seen," said John Palfrey, a law professor at Harvard. She published rarely; she did not speak out on controversial issues; she has been "extraordinarily — almost artistically — careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade." Thus: she stands a good chance at enduring Senate confirmation hearings because she has given her opposition little ammunition. David Brooks called this willingness to suppress her mind for her career "kind of disturbing." Andrew Sullivan called her pure careerism "depressing."

Posnerhead Richard Posner, an appellate judge and Univ of Chicago law professor, may have been similarly ambitious when young (I'm not sure), but based on how he's lived his adult life it's clear that he values the pursuit of truth over a carefully cultivated resume. Posner is someone people agree is bright enough to be a Supreme Court justice but too eccentric so as to never pass a confirmation hearing. With jaw-dropping productivity he's shared his thoughts on nearly every topic under the sun. He applies his considerable intellectual heft to timely public debates. He's come out in support of legalizing marijuana, gay marriage, and other rational (if unpopular) ideas. In addition to his court opinions, where are the most cited in the land, he churns out a book a year and a blog post a week. With all this output, he inevitably gets some stuff wrong (sometimes a lot of stuff wrong), offends everyone at least once, and makes himself impossible to pin down. But what an inspiring mind and life!

The career results for each: Kagan will likely assume the top judicial position in the land. Posner will stay put at a close-to-the-top judicial position. The pure careerist achieves her goal. But at what cost?

I'd rather be close to the top and be able to live honestly and with the freedom to take risks than live a neutered life for 35 years in order to rise to the very top. I'd rather be myself than be a shallow, approval-seeking imitation of what is supposedly required to advance to the next level.

Bottom Line: In many professions it seems the sacrifices to go from A- to A+, from 2nd place to 1st place, are just not worth it.

21 comments on “Career Lessons from Elena Kagan vs. Richard Posner
  • Diminished Marginal Returns. I agree. This is true in just about EVERYTHING. I can’t even think of an exception, though I’m sure someone can.

    Once you squat 400, does it matter if you squat 700?

    Once your IQ is 140, do you get anything out of being smarter, or are you just too weird at that point?

    How good looking do you need to be before falling into narcissism?

    How tall until you have achieved ‘CEO’ height but then you have to start buying at big and tall stores?


    Goes back to points on business. Ship the minimum viable economic offering. Holding out for perfection (Duke Nukem Forever) isn’t worth it.

  • “And none of us has any clue whatsoever what kind of justice she would be – and that’s fine with those in the elites who need only their private knowledge and web of social networks to give one of their own so much power over so many, without ruffling her composure one little bit.”

    This seems to be the only point in the Sullivan piece that raises a concern that might actually weigh on Kagan’s candidacy. The rest just seems like a dressed-up version of “I don’t like or agree with your life choices, so there’s something wrong with them.” Both he and Brooks appear to be guilty of doing what they criticize our careerist culture for: elevating a subjective standard of how people should behave (like publicly-opinonated risk takers) and bludgeoning Kagan for not living up to it.

  • This is a great blog post with a carelessly derived conclusion. You have shown that it may be true in *one* field (I say “may” because the other recent confirmed justices did not take that approach – they were all judges previously with at least some paper trail), but nothing about other fields.

    Furthermore, I’d make a distinction between making *sacrifices* (e.g., working long hours) and avoiding the substance to improve your chances. The former is true of almost any great career; the latter, only in metaphysically social environments like politics or in badly run large corporations.

    With Kagan’s approach of avoiding expressing opinions over her long career, the bigger risk is not that she has unknown and extreme positions, but rather that she has formed the habit of not having or expressing opinions, and cannot well adapt to the sudden need to do so.

  • Yeah but once she’s on the supreme court she can be has outspoken and crazy as she wants and no one can touch her.

  • Elena Kagan may get the top spot
    – and for a very long time.
    She is only 50. If that was her
    lifelong goal, than I think
    her strategy of being measured
    for 30 years, will pay off.
    With the protection of a
    lifetime appointment, she will
    be able to use her power
    and influnce as she sees fit.

  • Great post. By the way, Posner has said that he went to law school as a default option, not because of ambition. His judgeship, too, just seems to have simply fallen into his lap. In fact, I’ve heard him explicitly refer to his career as being the product of a series of accidents.

    It’s a shame that you decided to link to that ridiculous Kwak attack, which is about as enlightening as a black hole. Take a closer look at Kwak’s posting; in fact, it doesn’t specify, as you suggest, a whole lot of mistakes. Sure, Posner helped shape regulatory policy with respect to antitrust law, and other areas, but his basic views on those subjects have not changed. And realizing that Keynes has many insightful things to say about depression economics, a subject Posner began studying after Sept. of 2008, isn’t an admission of error.

    To his credit, Kwak forthrightly admits that his attack is based not on the merits, but on his dislike for Posner’s judicial opinions, which he must read for his law classes. I know where he’s coming from, because I had to read maybe a half dozen of Posner’s opinions in law school too. (As a lawyer, I’ve read hundreds of his opinions.)

    Posner isn’t perfect (no one is) but Kwak’s criticism that Posner doesn’t consider empirical evidence in his judicial opinions is patently absurd. The degree to which an appellate judge is allowed to consider and weigh facts is constrained by the relevant standard of review. And Posner’s books — including his most recent “The Crisis of Capitalist Democracy,” which I highly recommend — are loaded with citations to empirical studies. He’s a self-avowed pragmatist who cares about the facts. Unlike, apparently, James Kwak.

  • Good distinction between “sacrifices” and avoiding substance to improve your chances, and the idea that avoiding substance to improve your chances exists only in a few environments.

  • “I’d rather be close to the top and be able to live honestly than … a neutered life”

    “I’d rather be myself than be a shallow, approval-seeking imitation”

    Are those the choices you see for yourself, Ben?

    Are you really calling Elena Kagan a dishonest, neutered, approval-seeking imitation?

    There is no backspace key in life, but there is one available to you when typing things like this for your blog.

  • Great post! I think it’s definitely interesting to see what people sacrifice for their careers and to get ahead. Kagan has definitely achieved what she’s set out to do, but the question is, was the sacrifice worth it? For her, it very well may have been. But for many others, that type of life is not satisfying. I find Posner’s path much more satisfying, but ultimately, can we even make generalizations? To each his own. What works for Kagan doesn’t work for everyone — but that doesn’t mean it’s not a legitimate path for those who seek her breed of success.

  • We all make our own choices based on what we want out of life.

    Ultimately, we need to judge based on three factors:

    1) Do we approve of the goal?
    2) Was the person successful at achieving the goal?
    3) Do we approve of the means used to achieve the goal?

    In Kagan’s case, the goal of being a Supreme Court Justice seems as worthy as any other aspiration to great power and responsibility.

    It certainly seems like she’s on track to achieve that goal.

    Ultimately, even if we disapprove of her means (and who is to say that Kagan would have anything interesting Posner-esque things to say if she so chose?), she succeeded admirably based on the goals she set out for herself.

  • Agreed, though one aspect of this post is for readers to think about whether
    the means required to achieve such a goal are worth it for them. Lots of
    people aim high — but are they certain they want to do what Kagan had to do
    to reach them?

  • Dishonest? Shallow? Really? I find that hard to believe. I haven’t read much about her, though. They’re strong accusations, without much to back them up in the post.

  • Marty Nemko wrote a great post about the type of people attracted to this kind of sacrifice and how it’s not really worth arguing if they’re “right” or “wrong” to choose a path that leans towards, what appears to be workaholism. For some people, they offer their best when they’re working.

    “A world where women (and resocialized men) earn Nobel Prizes on flextime has no basis in reality. But the Advance program is not about reality nor a reality we should aspire to…if our priority is to cure cancer, solve our energy problems, etc. Instead of pathologizing them as “workaholics,” we should honor the people who work 70 hours a week in hopes of creating a breakthrough. We certainly should not be subjecting aspiring scientists to a re-education program that brainwashes them into the absurd belief that everyone, even world-class scientists would be better off if they only worked modest work hours.”

    I would also add that the sacrifices a woman needs to make for this type of achievement are often much more extreme than male counterparts. The Eleans, Orpahs, Marthas of the world tend to be highly independent, child-free and often single.

  • There’s a corollary to this in scientists’ quests for Nobel Prizes, in that they are most often awarded to those who have spent an entire 30+ year career specializing in one narrow field of research. Scientists who take the risk of exercising greater intellectual curiosity and move on after making seminal contributions to numerous important fields (George Whitesides comes to mind) tend to get short shrift. The latter route seems much more rewarding.

  • I’ve said it many times: What if I don’t agree with society’s definition of success? I’ve known for many years that I will “fail” because society’s hypocrisy is something I’m not willing to overlook.

    And I’m fine with that.

  • Great post. Society benefits alot more from a Posner – speak out, not afraid to share their views – than from people reluctant to share ideas because it might “hold them back”.

    We don’t have to air as much as, say, a Jersey Shore character. But we need to encourage people to speak up and be able to handle different points of view.

  • That ghastly photo of a simpering wax figure David Brooks is a lot more disturbing than the thought that Elena Kagan might have suppressed her native intelligence to get where she is.

    The ultra-establishmentarian Brooks observes that those Organization Kids at elite college campuses “often had a professional and strategic attitude toward life,” and almost seems aggrieved that such irritatingly admirable students “were prudential rather than poetic”.

    A reasonable person might think being “prudential, deliberate and cautious” was a desirable quality in someone who wants a career in jurisprudence.

    Brooks’ effort to depict Kagan’s reticence as “disturbing” is every bit as convincing as William F. Buckley’s attempts to create a believable sex scene in one of his tedious novels.

    But he’s reinforced my impression that Kagan is a calculating tactician and a master strategist, traits that would serve her well in dealing with conservatives like Roberts, Scalia, and Thomas on the Supreme Court.

    DaveJ says: “the bigger risk is… that she has formed the habit of not having or expressing opinions, and cannot well adapt to the sudden need to do so.”

    Kagan may not have generated much of a jurisprudential paper trail, but she’s a Jewish lesbian, for Christ’s sake– I really don’t think we have to worry about her “not having or expressing opinions.”

    If she achieves her goal, I have no doubt she’ll feel her sacrifice was worth it, and that we’ll be hearing much more from a suddenly voluble “organization kid”.

    Besides, the SCOTUS could use a stealth bra-burner to upset the constipated old paleos.

  • Posner is a very interesting person, but his life from my perspective is very boring. He and his wife are self-described homebodies who practically never go out, and he’s been in the same place physically for 30-some years.

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