Obama’s Harriet Miers?
Three anti-Kagan pieces appear below ... drawn diversely from Firstthings and the Daily Beast.
Monday, May 10, 2010, 1:42 AM
Joe Carter
Later today, President Obama is expected to nominate U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court. Surprisingly, the initial opposition is coming from the left rather than from the right. Glenn Greenwald, a former constitutional and civil rights litigator and columnist for Salon, has been leading the charge against Kagan:
Perhaps most revealing of all: a new article in The Daily Caller reports on growing criticisms of Kagan among “liberal legal scholars and experts” (with a focus on the work I’ve been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows: ”The reality is that Democrats, including liberals, will accept and push whomever Obama picks.” Yesterday on Twitter, Matt Yglesias supplied the rationale for this mentality: ”Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama.”
Just think about what that means. If the choice is Kagan, you’ll have huge numbers of Democrats and progressives running around saying, in essence: ”I have no idea what Kagan thinks or believes about virtually anything, and it’s quite possible she’ll move the Court to the Right, but I support her nomination and think Obama made a great choice.” In other words, according to Chemerinksy and Yglesias, progressives will view Obama’s choice as a good one by virtue of the fact that it’s Obama choice. Isn’t that a pure embodiment of mindless tribalism and authoritarianism? Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush’s selection of Harriet Miers to what progressives are almost certain to do with Obama’s selection of someone who is, at best, an absolute blank slate. [emphasis in original]
In fairness, Kagan certainly seems to be more qualified than Miers. But it would be hard to argue that she was the best qualified choice for the highest court in the land.
firstthings.com
The Next Harriet Miers?
by Paul Campos
Paul Campos is a professor of law at the University of Colorado at Boulder.
Harriet Miers; Elena Kagan (AP Photo; Landov) Top Supreme Court contender Elena Kagan, is an able administrator with a shamefully thin record of legal scholarship. Paul Campos compares her to the hapless Bush nominee who got laughed out of town.
As the rumblings become louder that President Obama is going to choose U.S. Solicitor General Elena Kagan as our next Supreme Court justice, somebody needs to ask a rather impolitic question: How, precisely, is Kagan's prospective nomination different from George W. Bush's ill-fated attempt to put Harriet Miers on the nation's highest court?
On its face, the question seems absurd. Five years ago, Miers was derided as a careerist mediocrity whose primary qualification to be on the Supreme Court was a slavish devotion to President Bush. Kagan, by contrast is a purportedly "brilliant" legal scholar who was granted tenure at the University of Chicago and Harvard, before becoming dean of the latter's law school.
Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews.
Whoa, that's a lot. Judging by our brilliant constitutional scholar President, that is.
Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago's own faculty—and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it's true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard's dean, and for never having written anything intended for a more general audience, either before or after taking that position.)
Kagan's handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president's power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations. (Of course cynics have noted that today Supreme Court nominees are often better off not having an extensive "paper trail" regarding their views on controversial legal issues. Who would have guessed it would be possible to retain this virtue while obtaining tenure at two of the nation's top law schools?)
At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan's scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it's unlikely to offend anyone in a position of power.
Take, for example, Kagan's article, "Presidential Administration," which appeared in the Harvard Law Review in 2001. The piece is dedicated largely to reviewing the extant literature on the power of Congress and the president to control the actions of administrative agencies. Kagan's thesis consists of presenting a fairly standard view within administrative law scholarship—that relatively tight presidential oversight of administrative agencies can have beneficial regulatory effects—as if it were a novel argument. She maintains, on the basis of thin evidence, that such oversight increased significantly under the Reagan and Clinton presidencies, and concludes with the tautological insight that presidential oversight can be a good thing if it doesn't go too far.
Kagan's work reminded me of Orwell's observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever." The bottom line regarding Kagan's scholarly career is that there's no there there. This is a problem not only because we have no evidence regarding what her views might be on almost any important legal question, but also because Kagan's supposed academic achievements are being touted as the primary justification for putting someone who has never been a judge on the nation's highest court. Now the fact that Kagan is more or less an academic nonentity would be of merely academic interest if she possessed unrelated but compelling qualifications for ascending to the nation's highest court. But what else, exactly, has she done?
Besides her law-school career, Kagan's resume consists of four years in the Clinton White House, where she was Associate White House Counsel—a full rung down from Harriet Miers' position in the Bush White House—and Deputy Director of the Domestic Policy Council, and six years as the dean of Harvard's law school. (Last year, Obama chose her as his solicitor general).
Apparently her main accomplishment as dean at Harvard was raising a lot of money, which, given that it's the Harvard Law School, sounds roughly as impressive as managing to sell a lot of pot at a Grateful Dead concert. (She's also been given credit for improving the collegial atmosphere at the school, a.k.a., getting a bunch of egomaniacs to engage in less backstabbing, which anyone familiar with law school faculties can attest is not a negligible accomplishment. Whether it's a sufficient basis for putting somebody on the Supreme Court is another matter.)
It seems clear Kagan is a bright person and an able administrator. But Harriet Miers was those things as well: She had a long and successful career in the private practice of law, she was the first woman president of the Texas Bar Association, and she was the top lawyer in the White House for several years prior to her nomination to the Court.
Miers' nomination was derailed by two complaints: that her primary qualification was that she was a "crony" of the president, and that nobody knew what views she had, if any, on the vast majority of questions facing the Supreme Court. Both criticisms are just as relevant to Kagan's potential selection.
Consider that Obama and Kagan joined the Chicago law faculty in the very same year, after both were Harvard Law students and members of the Harvard Law Review. (The difference between a "crony" and a "colleague" is often something of a sociological mystery.) Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum.
Kagan seems to have a lot in common with Obama.
The second criticism of the Miers nomination applies with even greater force to Kagan. As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan's job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.
Paul Campos is a professor of law at the University of Colorado at Boulder.
thedailybeast.com
Elena Kagan's Achilles' Heel
by Peter Beinart
Peter Beinart, senior political writer for The Daily Beast, is associate professor of journalism and political science at City University of New York and a senior fellow at the New America Foundation. His new book, The Icarus Syndrome: A History of American Hubris, will be published by HarperCollins in June. Follow him on Twitter and Facebook.
Elena Kagan (AP Photo) Obama’s potential Supreme Court pick banned military recruiting at Harvard Law. Peter Beinart on how that stance has damaged liberals—and why conservatives are right to bash her for it.
President Obama is about to nominate someone for the Supreme Court. On the day he or she is unveiled, conservatives will announce that they are approaching the selection with an open mind. Ten minutes later they will declare, more in sadness than anger, that the nominee has the judicial philosophy of Chairman Mao and the temperament of Dennis Rodman. Ten minutes after that, liberals will rise en masse to defend the nominee as wise, brilliant and humane, a person who restores our faith in humankind. And the kabuki theater will continue like that all summer long.
I can’t blame my fellow liberals for playing along; if the other side fires, we have to fire back. But there’s one exception. If Solicitor General Elana Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right.
“I abhor the military’s discriminatory recruitment policy,” wrote Kagan in 2003. It is “a profound wrong—a moral injustice of the first order.” So far, so good. Not allowing openly gay and lesbian Americans into the military is a grave moral injustice and it is a disgrace that so many Republicans defend the policy to this day. But the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.
The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.
I doubt that’s how Kagan or her fellow administrators meant it. But it is certainly the way it has been received. It’s no coincidence that most Ivy League schools banned ROTC in the late 1960s, at exactly the moment liberalism was committing hara-kiri. The perception that liberals are unpatriotic stems from that moment in time and from actions just like that. And while the charge is and always has been unfair, banning recruiters from campus does suggest a somewhat impoverished understanding of patriotism. Yes, dissent is patriotic, as liberals love to declaim, but assent is an important part of patriotism too. Saying you show your love for your country only through criticism is like saying you show your love for your spouse only through criticism. It isn’t likely to go over well.
And it hasn’t. Banning the military from elite campuses hasn’t only helped generations of Nixons, Atwaters and Roves beat Democrats at the polls; it has also helped create a military that stands firmly on the red side of the culture war. As Michael Neiberg shows in his 2001 book, Making Citizen-Soldiers, the Ivy League administrators of the early 20th Century believed ROTC served a fundamentally liberal purpose. It infused the military with the spirit of intellectual openness found in the academy and thus “prevent[ed] the creation” of a narrow, isolated “military caste.” Today, thanks to administrators like Kagan, however, the military recruits mostly on the campuses of the South and West, and thus, the officer corps has become overwhelmingly Republican. The best way for Ivy League liberals to remedy anti-gay discrimination in the military—and to infuse it with liberal values more generally—would be to encourage the military to recruit from among their ranks, as those administrators urged a century ago. Instead, actions like Kagan’s have helped make the Ivy League and the military separate and sometimes hostile worlds, and both have suffered as a result.
Were Kagan to be passed over for the Supreme Court because of her views on military recruitment, many liberals would likely consider it unfair. But it would make ambitious Ivy League administrators think twice because succumbing to the left-wing mindlessness that sometimes prevails on campus. And it would further one of President Obama’s signature efforts: his bid to draw America’s almost half-century long culture war to a close. If that requires conceding that conservatives are right about something, so be it. I’m sure it won’t happen again anytime soon.
Peter Beinart, senior political writer for The Daily Beast, is associate professor of journalism and political science at City University of New York and a senior fellow at the New America Foundation. His new book, The Icarus Syndrome: A History of American Hubris, will be published by HarperCollins in June. Follow him on Twitter and Facebook.
thedailybeast.com |
