I don’t have a lot to say about Obama’s nomination of Elena Kagan that can’t be said better by others. Unlike now-Justice Sotomayor, she does not have an extensive record on issues that are within my core areas of expertise. I do, however, want to highlight one important advantage Kagan has over the realistic alternatives: an apparent openness to non-liberal ideas.
I. Kagan’s Relative Openness to Non-Liberal Views of the Law.
My general view of Kagan is that she is quite liberal and likely to vote with the liberal bloc on the Court on most important issues. At the same time, however, her record at Harvard shows that she has respect for alternative perspectives and takes them seriously. In this respect, , she seems different from Sotomayor, who wrote several opinions that disposed of major controversial legal issues in a cursory fashion that made it clear that she did not believe that the other side had a serious case that deserved serious consideration (see, e.g., here, here, and here).
Given the nature of the Obama Administration and the large Democratic majority in the Senate, it was more or less inevitable that we would get a liberal nominee and that she would probably be confirmed. In such a situation, I would rather have a liberal justice who takes alternative perspectives seriously and might occasionally be persuaded by them than one who is generally dismissive.
It is also worth mentioning that Kagan has critics on the left who believe that she is almost a closet conservative. I highly doubt that is in fact the case. Kagan has a long record of liberal views and involvement with liberal causes. It is significant that there aren’t any noteworthy conservative or libertarian legal scholars or activists who believe that Kagan is somehow one of them or even believe that she is a centrist. Ed Whelan’s recent “baffle[ment]” at claims that Kagan “might secretly harbor some conservative legal views” is representative of the dominant view of her on the right, including among right of center legal scholars who know her well, such as Harvard’s Charles Fried. Still, there is at least a small chance that Kagan’s left-wing critics have divined her true views correctly. Even if she isn’t any kind of conservative or libertarian, she might be less liberal than administration supporters hope. With Kagan, that possibility at least exists. Not so with most of the other plausible nominees. The small but not infinitesmal chance that Kagan might actually turn out to less liberal than I expect is another strike in her favor.
II. Other Relevant Considerations.
While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.
In my view, it is perfectly legitimate for senators and others to oppose a professionally qualified judicial nominee because of flaws in her judicial philosophy. On this, I agree with Barack Obama. At the same time, any nominee must be weighed against the likely alternatives, not just against some ideal pick. Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to pick. Therefore, I don’t see much to be gained from aggressively opposing her nomination. Indeed, if administration opponents dig in and signal that they will wage all-out war against any plausibly liberal nominee regardless of her views, that will just increase the administration’s incentive to appoint hard-line left-wingers. If Democrats believe they can’t avoid a tough nomination battle no matter what they do, they will have little reason to go with relative moderates.
Even if they choose not to oppose Kagan, conservatives and libertarians can still use the nomination and resulting hearings as an opportunity to raise important issues and point out weaknesses in the administration’s judicial philosophy. Kagan herself defended the legitimacy of inquiries into a nominee’s judicial philosophy in a 1995 article. Despite some excesses, I think we were fairly successful at doing that during the debate over Sotomayor, which gave new prominence to property rights issues, and forced Sotomayor to publicly repudiate liberal views on the importance of “empathy” and international law. Hopefully, the Kagan hearings will be another opportunity to advance public debate over important legal questions.
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May 10, 2010, 2:39 amOpenVolokh says:
I too think Kagan is an excellent pick. That she is open to dialogue with conservatives is a huge plus, not a minus. Her openness will make her a more effective persuader with the conservative majority.
May 10, 2010, 2:46 amDavid Welker says:
For those liberals out there bitching about Elena Kagan, as a fellow liberal, all I have to say it knock it off. She really is an excellent pick and will do an excellent job.
I am biased, because I took a class taught by her and Professor Richard Fallon at HLS and was impressed with the clarity of her thinking.
As for her comments above that she loves the Federalist Society, those are true comments. I was a member of the Federalist Society and was present at the 2005 dinner. And they are good ones. The Federalist Society deserves credit for having open debate amongst those with clashing points of view. I disassociated myself from the Federalist Society after I had a change of views and moved to a liberal viewpoint. I will credit, in large part, Harvard Law School and the Public Law Seminar I took with Elena Kagan for that transition.
Ms. Kagan knows how to talk to conservatives and liberals alike persuasively. At least she knew how to talk to me persuasively (along with Richard Fallon). That is exactly what we need on the Supreme Court. Someone who can engage in dialogue. It is easy to launch rhetorical missiles. I know this from experience. But rhetorical missiles are not persuasive. I know that if I had been attacked for my views as a member of the Federalist Society at HLS, I would never have changed my mind.
May 10, 2010, 3:19 amStephen Lathrop says:
Over years of watching Supreme Court nominations I have been impressed by the subtle accuracy of characterization that the totality of media coverage appears to deliver. Seems to me that anyone who takes the time to read multiple sources has had little reason to be surprised by the decision-making tendencies of any of the more recent nominees, going back at least to Souter.
Based on that, I’m a bit dismayed by the Kagan nomination. I expect her to be an identity politics liberal, but a corporatist, with a tendency toward authoritarianism. I don’t like any of that, and I think it is an especially poor flavor to add to the current Court recipe.
Given the acknowledged thinness of Kagan’s record, I would be delighted to discover that my impressions are wrong. But I will be a bit surprised if she doesn’t end up being characterized as one of those Earl Warren style appointments, where the people appointing her end up asking, “What were we thinking?”
May 10, 2010, 3:48 amtvk says:
I think you are missing one important element of why true liberals do not like Kagan as much as Wood. It is basically the same as why conservatives liked Alito more than Roberts. While most probably suspect that Kagan is quite liberal, picking her over Wood sends a clear message to every ambitious liberal law student: keep quiet about your liberal views.
May 10, 2010, 3:48 amDavid Welker says:
Can you elaborate on that? This just does not make any sense to me.
May 10, 2010, 3:52 amDavid Welker says:
If liberals are afraid to voice their opinions, they deserve to lose. I think the same goes for conservatives. The moment that liberals stop articulating and defending their judicial philosophy, the game is pretty much done.
And really, how much chance do you personally have at a Supreme Court appointment anyway? Not enough to try to be stealthy about what you believe. I don’t care if you went to Stanford, Harvard, or Yale. Some people do follow that path; very few of them are nominated.
Conservatives face the same dilemma. Need I remind you what happened to Robert Bork? The basic issue is that if your views deviate too far from the mainstream in either a liberal or conservative direction, you are going to have a hard time getting a nomination and if you do get a nomination, you will have a harder time being confirmed, depending on the composition of the Senate.
That said, Obama could nominate nearly anyone he wants right now. It wouldn’t mean that liberals who speak out in too strong of a manner won’t have a hard time being confirmed later when the Senate is more evenly balanced. A 59-41 majority is a naturally transient thing. Acting line nominating someone other than Elena Kagan would somehow change reality with respect to judicial nomination is wrong. The issue is structural. The more deep a democratic majority, the easier are confirmations for liberals and vice-versa for conservatives.
Here is the thing. Elena Kagan is simply an excellent candidate. Let us face reality for a moment. Conservatives have a majority on the court. Who do you want? An unpersuasive firebrand consistently in the minority, or someone who can reach out and actually communicate and persuade conservatives on the majority?
Basically, the question comes down to this:
Do you want symbolism, or do you want results?
Elena Kagan is actually amongst the best possible picks. From the perspective of liberals. She has a history of being able to communicate with both liberals and conservatives.
May 10, 2010, 4:12 amJ. Aldridge says:
If she can back up her persuasiveness with hard facts and evidence then I am willing to seriously listen to her.
May 10, 2010, 4:53 amStephen Lathrop says:
I’ll take a crack at it. First, I don’t think one of the people surprised by Kagan’s judicial tendencies will be President Obama. I think Obama is also an identity politics liberal, but a corporatist, with authoritarian tendencies. So perfect pick for Obama.
My point posits that liberalism has broken into two distinct streams. In one, the one with deeper historical roots, there is a view that a common public interest can be identified, that it has to do with empowering and improving the lives of ordinary people, that there is a strong economic component in that mission, that there is also a public safety, public welfare component, and that there is an equal rights component. This traditional liberalism views corporations with skepticism, and prefers to work with them through structured negotiations. It is also nationalistic, because it views national government power as a means to its objectives.
In its second, more recent incarnation, American political liberalism looks quite different. In that view corporations are just fine, in fact they are the principle instrumentalities for the social advancement of a host of group identity interests. Corporations conspicuously sponsor the advancement of blacks, Hispanics, gays, women, asians, native Americans, you name it—enough people to build a sturdy base for an alternative view of liberalism that leaves out the economic, public safety, and public welfare components. The new liberalism is explicitly anti-nationalist, as it has to be to serve the interests of international corporations.
By thus assiduously cultivating the equal rights component of the older liberalism, corporatists create space to discard the other components they find less congenial. Basically, you get a liberalism of equal opportunity employment plus greenwashing. Critics are dismissed as unsophisticated, or possibly as troglodytes with questionable views about equal rights. Critics are also made vulnerable on charges of national isolationism, and naive economics, particularly on trade.
That redefinition of liberalism takes power out of the public sphere, and puts it in the hands of corporate managers. Of course they prefer it. It’s a liberalism that corporatists can use to compete with governments for sovereignty, and win.
Maybe I’ve got Kagan wrong. I would be delighted to hear that I have overlooked positions of hers that persuasively put her in the first camp instead of the second. Can you supply any?
May 10, 2010, 4:54 amMaryG says:
Sounds like she’s a lady who’s still … finding herself. She’s getting the job nomination on the first count (being a lady) and from all accounts, there’s not much track record of results or accomplishments in her professional background — short of advancing her own career.
If that was enough for you to vote Obama as president (being an African-American man, with a short track record of accomplishments for all the efforts at battling for “social justice”), then I bet she has lots of professional and political support too.
Personally, I think we’re going to be facing some biiig legal questions in the decades to come about remaking (or attempting to, remember we do track results) society in the names of social justice. I want the best mind — somebody who can define themselves already, with a solid track record to read, compare and criticize — whether it be a boy mind or girl mind; Protestant or Jewish; hetero- or homosexual.
I don’t like the denials that presumably will be later denied, when it’s politically more convenient. It doesn’t say much about being solid, standing on principle, or fighting for true justice, not just the social advance-my-career type. We need somebody who is up to the fight intellectually, not somebody like the current president who can merely run and hide from developing situations, preparing to confront them only when the timing is right and there’s no way to lay blame at his feet.
Let’s not annoint young Ms. Kagen as our social decider just yet, before going over that background more carefully. Since Mr. Bork, the process has demanded it of us, if only to vigorously check-and-balance the personnel on our highest Court.
May 10, 2010, 4:59 amMaryG says:
Ms. Kagan knows how to talk to conservatives and liberals alike persuasively. At least she knew how to talk to me persuasively (along with Richard Fallon). That is exactly what we need on the Supreme Court. Someone who can engage in dialogue.
No. But those are good qualifications for a high school social studies/civics teacher.
Without her gender to help her ambitions along, in times when the female gender meant automatic advancement, I wonder if Ms. Kagan too might have excelled as a high school teacher, like her two brothers.
May 10, 2010, 5:02 amAnthony says:
I tend to believe that the president should be given wide latitude on his picks, providing that the nominee is qualified. Kagan is, Harriet Meirs was not (Meirs should have been nominated to the 5th Circuit). That is somewhat subjective of course. I would look at someone who was very radical. For example, if Bill Ayers was nominated to be Secretary of (Re)Education or Bernadette Dohrn was nominated for a judgeship, I would balk. But generally, the president should in my view get latitude.
May 10, 2010, 5:56 amBrett Bellmore says:
Not so long ago she was arguing before the Supreme court that book banning was constitutional. So far as I see, the only basis for claiming that she won’t be a civil liberties nightmare, is that she’s a totally unprincipled sophist who’d argue any position at all so long as the check clears.
So, as a Supreme court Justice, who’s she going to understand as writing those checks? The American people, or the federal government?
I understand that, in the legal community, that’s a respectable thing to be. Do lawyers understand that’s a good part of why, outside the legal community, a lawyer isn’t a respectable thing to be?
May 10, 2010, 6:53 amStephen Lathrop says:
One more thought. President Obama seems likely to get at least one more Supreme Court nomination, quite likely with a narrower margin in the Senate than this nomination will enjoy. Why in the world is it good politics to offer the conservative-looking blank-slate candidate first, when she would so obviously be a natural choice as the best candidate for a foreseeably more closely contested process down the road.
May 10, 2010, 7:31 amanon says:
I am ecstatic because Kagan wrote to the S.C. in capacity as solicitor general that “Absent a specific statutory provision authorizing or precluding judicial review, a contention that the Attorney General was maintaining or disseminating criminal records in violation of law would be cognizable under the Administrative Procedure Act, 5 U.S.C. 551 et seq. (APA), in a suit brought by a person aggrieved by the alleged violation.”
May 10, 2010, 8:04 amI was imprisoned by USDOJ for 5 months without a criminal charge or a specific statutory authorization for the purpose of burdening my federal civil lawsuit DDC 05-01672. (I don’t have a criminal record and was not charged with fraud or perjury.) Like Dr. Steven Hatfill, I sued USDOJ. It created records in their prisoner tracking system without confirming the accuracy and completeness of input records even though OIG’s audit report advised USMS in 2004 to require supervisory verification of these records. But, I guess because they think I am weak, USDOJ pled that extrajudicial incarceration is government policy and Judge Bates said I should get no relief under the APA and can’t pursue under first amendment retaliation or obstruction of justice either. So now at least I am going into appeal with a quotation from the S.C. nominee
go vols says:
Brett,
So is it your view that as SG, she should not have zealously defended a US law? Or do you think she should have resigned, rather than argue the case?
If you want to argue that she personally believes in campaign finance regulation, fine, argue so, but provide some evidence, please.
Stephen,
Agree. Obama will likely never be in as strong a position, vote-wise, as he is now. Save Kagan for Ginsburg.
May 10, 2010, 8:11 amDesiderius says:
Ilya,
Liberals like yourself will remain in the wilderness until you learn to distinguish between liberal (what you are) and left (what you are not).
May 10, 2010, 8:11 amcecil kirksey says:
Ilya:
May 10, 2010, 8:19 amYou wrote “respected though not pathbreaking legal scholar”. Would you care to provide an example of such and why. It would seem to me a respected constitutional scholar, if you meant such, would be extensively quoted by the SCOTUS.
David M. Nieporent says:
The problem is, I don’t see any evidence that your premise is true: that conservatives liked Alito more than Roberts.
May 10, 2010, 8:42 amPhil says:
See eg., Jon Adler’s post this morning, “Kagan’s Scholarship”
May 10, 2010, 9:40 amAnonsters says:
In other words, she’s a working lawyer.
May 10, 2010, 10:23 amAnonsters says:
Because Obama isn’t as liberal as we (who are his base) thought/hoped he was.
May 10, 2010, 10:25 amMark says:
Let’s talk about the identity politics of this. Kagan is an Ivy-league-educated Jewish single woman from New York. She follows on the heels of Sotomayor, who is an Ivy-league-educated Puerto Rican single woman from New York. Prior to her, the last Democratic pick was an Ivy-league-educated Jewish married woman from New York. As we go into midterm elections, is this what the President wants to tell the nation constitutes the Democratic Party? Sure, the Northeast is an important part of the country, but there’s a lot more to the nation, and the Party, than New York City. (One would think, after Wall Street has brought the nation to its knees, that we would actually look elsewhere for national leadership at this point in time, for appearances if nothing else.)
If the Supremes are really going to govern a nation that is 75% Protestant, 95% not from New York, and 99% not Ivy-league-educated from 1 First Street, I sure hope that diversity of background is not a requisite for the Court. So much for the “wise Latina” view of judging.
As to geographic diversity, the above will be joined by fellow New Yorker A. Scalia, as well as Bostonian Breyer and Philadelphian Alito. With Kennedy from California, Thomas (from Georgia) and Roberts (an Midwesterner who has spent his adult life in D.C.) are the closest thing to “flyover” Justices on the Court. The Northeast is important to the Democratic Party, but it’s a small part population-wise — and in Congressional politics, population matters.
Aside from highlighting the lack of geographic and religious diversity on the Court, the pick is curious for other reasons as well. On the substance, Kagan is touted for her work “bridging the ideological divide” at Harvard Law School. This is surreal. If there is anything that is disconnected from the real world, it is the tenure politics of Harvard Law School. Only the most Ivy-towered academic monk could think that deanship of a law school prepares one for the substantial legal, political, economic, social, and cultural issues facing the nation.
Moreover, Kagan’s supporters’ best substantive points relate to two law review articles regarding Executive Branch “czars” and the Chevron Doctrine. Neither article is groundbreaking in any respect, and, at most, they indicate that Kagan might make a good DC Circuit judge. Nothing more. Her opposition to the Solomon Amendment — the one substantive issue that she really dealt with as Dean — was silly, smug, and vain.
Finally, Kagan’s singleness is itself curious. While there has been a flap, including CBS’ reporting, about whether Kagan is a lesbian, Kagan’s singleness alone is curious about what it says about identity politics. We’ve already had that great hermit jurist, Souter, who got beaten up in the middle of the night in NW DC for some strange reason, and now we have Sotomayor who, we were told, “is like a mother to her law clerks.” We almost had H. Miers who, similarly, was “married to her work.” Again, as with all the Protestants and “flyover” citizens in this county, it appears that that the elite are increasingly fearful of people who have undertaken the responsibilities of marriage and parenthood along with their regular work requirements. This increasing disconnect from the overwhelming majority of Americans is not a good thing.
Contrast Judge Wood. She is an excellent judge, with a well-documented and proven track record dealing with the important issues of our day. She has shown an excellent ability to work with — and against — some of the best conservative judges our nation has to offer, including Posner and Easterbrook. She will not back down from her liberal opinions, and she doesn’t need to. They are professional to the nth degree. She’s Protestant. She’s a Texas grad. She’s married. Going into the midterm elections, she is a much better candidate for the Democratic Party to nominate to national office.
So, in contrast to Kagan, why was she not chosen?
May 10, 2010, 10:38 amJules Crittenden » Kagan Gets The Nod says:
[...] Ilya Somin at Volokh: She’s not Sotomayor. She’ll vote liberal but takes other views seriously. [...]
May 10, 2010, 10:44 amJ says:
“her record at Harvard shows that she has respect for alternative perspectives”
Not the first place I’ve said it, but I think you underestimate how profoundly offensive her treatment of military recruiting at Harvard was to the general public. I hope we don’t wind up with something worse as a result.
I also agree somewhat with the sentiment that we need to quit putting Ivy League grads on the supreme court. I’ve been underwhelmed with the products of Ivy League schools in the business world and politics, and sooner or later our luck is going to run out in the judiciary as well.
May 10, 2010, 11:12 amBob from Ohio says:
I’ll just restate my main objection to her.
Ivy, Ivy Law, federal judicial clerk, Northeast Corridor/Beltway Big Law.
She doesn’t serve on a circuit court decause her nomination died. Otherwise, she would have met the cookie cutter Supreme Court template perfectly.
No qualified, liberal democrats elsewhere?
For those who value the federal courts, it is a mistake in the long run to detach the federal courts from the nation and make them solely a playground of the “elite”.
May 10, 2010, 11:15 amMax Power says:
Care to elaborate? If by “vain” you mean “in vain” (i.e., destined to fail given the makeup of SCOTUS and the arguments the Justices would plausibly have been receptive to), then perhaps you are right. (Though don’t forget that the Third Circuit felt otherwise.) If by “vain” you mean “full of vanity,” on the other hand, then you are sadly mistaken — all the information available suggests that she truly did believe that DADT/Solomon was “a moral injustice of the first order,” and that her opposition to it was principled, not opportunistic. In fact, given her obvious lifelong desire to become a Justice, you’d think that the self-aggrandizing thing to do would be to avoid the issue, not grandstand on it.
And I fail to see how opposition to Solomon/DADT qualifies as “silly.” Perhaps you personally support the policy, but to those who are affected by it — including those who are fired from their jobs and lose their livelihood because someone rats them out as gay — would probably not call Kagan’s stance “silly.”
May 10, 2010, 11:16 amMax Power says:
Care to elaborate? If by “vain” you mean “in vain” (i.e., destined to fail given the makeup of SCOTUS and the arguments the Justices would plausibly have been receptive to), then perhaps you are right. (Though don’t forget that the Third Circuit felt otherwise.) If by “vain” you mean “full of vanity,” on the other hand, then you are sadly mistaken – all the information available suggests that she truly did believe that DADT/Solomon was “a moral injustice of the first order,” and that her opposition to it was principled, not opportunistic. In fact, given her obvious lifelong desire to become a Justice, you’d think that the self-aggrandizing thing to do would be to avoid the issue, not grandstand on it.
And I fail to see how opposition to Solomon/DADT qualifies as “silly.” Perhaps you personally support the policy, but to those who are affected by it – including those who are fired from their jobs and lose their livelihood because someone rats them out as gay – would probably not call Kagan’s stance “silly.”
May 10, 2010, 11:18 amMax Power says:
I’m not sure the general public understands exactly what Kagan did do and did not do. She did not ban the military from campus or denounce them. After the Third Circuit held that Solomon was unconstitutional, she did re-implement the policy — implemented by her predecessor — of requiring military recruiting to go through a student group and reserve facilities separately, rather than using the same centralized on-campus interview system used by all other employers.
This symbolic gesture imposed no additional burden on students who wanted to interview for military positions. It was certainly a special accommodation to the military, which, if it were treated like any other employer, would have been totally banned from campus under Harvard’s binding non-discrimination policy (which also pre-dated Kagan). And all the while, Kagan praised and lauded the military and its members’ service to high heaven.
It would not surprise me that the general public would vehemently oppose kicking the military recruiters off campus and forbidding them access to Harvard’s students. But that is not what happened. Whether the media is capable of reporting accurately on this issue, and whether the public is capable of making the distinction, remains to be determined.
May 10, 2010, 11:29 amInsufficiently Sensitive says:
…Kagan has critics on the left who believe that she is almost a closet conservative.
It’s easy to find leftists these days who are fanatic enough to make such silly remarks of anyone not to their own left. It speaks very poorly of our current educational system. But such quotes probably result from a search for the most extreme and dramatic statement about Kagan – if they weren’t simply invented. Relax, lefties, she’s not a conservative.
May 10, 2010, 11:29 amWidmerpool says:
Mark–Judge Wood did not get the nod because she was successfully painted as too liberal and Kagan, somehow, was able to position herself as being moderate. All your points on demographics are valid, but you’re missing the most important one (from the President’s perspective): Kagan is ten years younger.
May 10, 2010, 11:30 amDangerMouse says:
Not so long ago she was arguing before the Supreme court that book banning was constitutional. So far as I see, the only basis for claiming that she won’t be a civil liberties nightmare, is that she’s a totally unprincipled sophist who’d argue any position at all so long as the check clears.
You assume she doesn’t really believe in banning books. But she probably does believe in banning books, as most libs hate freedom of speech when such speech attacks liberal ideologies. That’s why many of them want to re-impose the fairness doctrine, and constantly argue that the Tea Party protesters are more dangerous than Muslim terrorists. Certainly, she wouldn’t have argued about banning books if she didnt’ believe at some level that it was permissible.
Elena Kagan – Book banner.
May 10, 2010, 11:34 amFloridan says:
J: “I also agree somewhat with the sentiment that we need to quit putting Ivy League grads on the supreme court. I’ve been underwhelmed with the products of Ivy League schools in the business world and politics . . . ”
This sounds a lot like Big 10 fans’ complaints about SEC football.
May 10, 2010, 11:44 amjgreene says:
Excellent comments. My own feeling is that Roberts and Alito were the last “excellent” jurists selected to the Supreme Court.
The originalists on the court, Scalia, Thomas, Roberts and Alito are head and shoulders above the rest in their legal acumen. They of course are all Members of the Federalist Society and Catholic. No correlation intended, just a “tweak” to liberals.
May 10, 2010, 11:48 amanon says:
The S.C. is weakest in administration and practicality. It has turned US Courts into courts for business and courts for criminal prosecution but we have no more courts for civil rights violations. US Courts has slammed the door in the face of the middle class and formerly middle class. US Courts doesn’t want us and won’t let us have evidentiary hearings. If you demand an evidentiary hearing, then US Courts will use summary procedure to put you in jail until you agree to dismiss your claim. It happened to me.
Kagan is computer savvy and hopefully will allow ECF to help guide the pleadings and adjudication of pro se litigants.
May 10, 2010, 11:54 amDavid Welker says:
Stephen Lathrop,
I think this division between corporatist Democrats and non-corporatist Democrats is awfully artificial. Take my position. I am neither for nor against corporations as a general matter. They just are. They are an organization of people and wealth for a particular purpose. Some corporations are well run, others are badly run. Whether a corporation is well run or badly run or is a net benefit to society or a net cost to society is much more important than simply the fact that it is a corporation. Perhaps the corporate form itself can be criticized to some degree — I am open to such arguments — but those do not strike me as overwhelmingly important compared to how the actual human organization that is a particular corporation is run.
I don’t think your artificial division of Democrats into different types along this dimension is particularly helpful.
May 10, 2010, 11:55 amDavid Welker says:
Good luck with that. ECF is currently amongst the most poorly designed computer systems I have ever seen. It is extremely bad software. If you wanted to have ECF guide pro se litigants, it would actually have to be good software. That means having ECF be redesigned by software engineers who actually have some minimal competence in user interface design.
The question arises. Why hasn’t this happened before now? Before burdening ECF with new requirements, they should get the software they have now up to a higher standard.
May 10, 2010, 12:02 pmDavid Welker says:
Right now, the Supreme Court is divided 5-4 in favor of conservatives. Someone like Kagan is someone who could help flip some of the close cases 5-4 in a more moderate direction. Why would you want to delay that?
May 10, 2010, 12:06 pmMark says:
Max Powers,
I’d be happy to elaborate. There is a moral issue related to the Solomon Amendment and there is a legal one. The legal issue is whether Congress may attach conditions to its spending of money for higher education that includes a requirement that military recruiters be given equal access to other recruiters on campus after Congress has enacted DODT. There is also the moral issue of whether DODT is morally right. Kagan took the legal position, with quite a bit of fanfare, that Congress may not attach its recruiting condition to its spending on higher education. Kagan lost the legal argument. Big time. And her loss was entirely predictable; it was never seriously in doubt.
The silliness, smugness, and vanity shows in her reaction to the moral issue after her legal loss. After losing the legal argument — which she was bound to lose — Kagan lacked the seriousness to defend the moral principle at stake by NOT TAKING THE MONEY. If military recruiters are so repugnant to Dean Kagan and Harvard, and if she truly believes that DODT is morally reprehensible (as I believe, and as you apparently believe), then the serious, principled thing to do is to stop taking federal dollars. But she’s not serious enough (i.e., she’s silly) to actually back up her words with tangible action. Also, she’s smug — her comments and arguments at the time of the case showed a disdain for Congress that, while unsurprising from Cambridge, reeks of superiority. Finally, she’s vain. My dictionary defines this as “having no real value, meaning, or foundation: empty, idle, worthless.” Kagan’s legal arguments against the Solomon Amendment lacked foundation. They were empty, idle, worthless posturing, and they lost in court because of it. If she had followed her legal argument by not taking the money, well, THAT action would not be vain, in my opinion. When she lost her court case, however, Kagan failed to back up her words with action. She was unwilling to pay a personal or institutional price for her moral stance. If you aren’t willing to pay a price for what you believe, then, in my opinion, you “have no real value, meaning, or foundation” and you are “empty, idle, worthless.” Worse, which is the issue at hand, you have shown that you are probably a dangerous judge who will confuse your own morality with the nation’s law.
May 10, 2010, 12:09 pmDavid Welker says:
Those are also great qualities in a Supreme Court justice. Being able to listen to and persuade your colleagues is a very important attribute in a Supreme Court justice.
Look, I don’t think expectations for Kagan should be raised too high on this point. People on the Supreme Court have very developed philosophies and are only open to persuasion to a limited degree. But Kagan will probably do an excellent job in persuading her colleagues to the extent that it is possible.
May 10, 2010, 12:09 pmcecil kirksey says:
I was looking for an example of someone who is/was a path breaking legal scholar (constitutional) and what makes that person such.
May 10, 2010, 12:10 pmMaryG says:
All your points on demographics are valid, but you’re missing the most important one (from the President’s perspective): Kagan is ten years younger.
Ah, but from the excess poundage on her, anyone care to speculate on lifespan expectancy?
Sorry David. I don’t share your enthusiasms — she might make a great attorney and judge. Might crack under the lifestyle (from a social dean to a working Justice: different roles, different levels of … “work”)
This job is too big to put someone untested and unknown in the key job duties: judging. Let her get some AAA ball under her belt before she comes in assuring us that indeed she’s up to calling the pitches in the majors.
If it’s true, show us. Work the job before you go claiming entitlement to the top position. If not, stick to the deanships, the politicking, and the types of jobs where no results are necessary, other than buying the right people for your staff adn keeping the kiddie students happy with a new skating rink.
Again, if she weren’t a woman, I suspect she’d make a might fine high school social studies teacher like her brothers.
May 10, 2010, 12:14 pmloki13 says:
The Big 10 plays football? I thought they just fielded eleven random undergrads to get whupped by the SEC in bowl games? Go figure.
Anyway, to address a few comments:
1. Regarding the book banning comments, Brett clearly doesn’t understand what the SG does specifically, or what lawyers do in general. As for Dangermouse, well, that’s Dangermouse for you. Oh yeah…. abortion.
2. Regarding the DADT- Ms. Kagan defended the HLS anti-discrimination policy, an articulated an argument that was well-supported under current law (see the Third Circuit decision). SCOTUS disagreed. It happens. When they did, she allowed recruiting. At all times she voiced positive opinions about our military.
3. Regarding “lefty” fears- she’s liberal. She’s a good pick. Is she the Bork of the left? No. But she’s not Breyer, either (and that’s a good thing).
4. Regarding her scholarship- she has a small, but good, body of work. Her body of work is small because she is the Dean of HLS. This position requires the evaluation of a large amount of other scholar’s work. It also requires her to have more generalist knowledge than, say, a professor who has spent the last 30 years burrowing into one area of the law, which is a good thing (IMO).
5. I think her ability to listen and persuade are undervalued. Will she be able to sway justices from their core views (convince Scalia the Confrontation Clause isn’t all that, or Thomas that stare decisis has value)? No. But she could play a similar role to Roberts, from the left.
6. MaryG’s comments are reprehsible. She has no acocmplishments other than “being a lady”? I would respond in detail, but I choose (like other posters) not to feed the troll.
May 10, 2010, 12:22 pmBob from Ohio says:
Few are more conservative than me but that is just silly.
Roberts and Breyer are the most talented in my opinion. Scalia is smart but too vain and argumentative to be “excellent”.
The remining 5 are just interchangable cogs.
Sotomayor and Alito are mirror twins. If Alito is “excellent, then Sotomayor is too. (Neither are.)
May 10, 2010, 12:25 pmElena Kagan for the Supreme Court? says:
[...] Judiciary Committee will put on its usual dog-and-pony show, politicians will grand stand, and Elena Kagan will be confirmed: [A]ny nominee must be weighed against the likely alternatives, not just against some ideal pick. [...]
May 10, 2010, 12:30 pmMax Power says:
You are probably right about this point, but again, the Third Circuit disagreed — so it’s not as if no jurist anywhere ever bought the anti-Solomon argument.
I would agree with you here, too, except the decision was not up to her. Under Congress’s then-current interpretation of Solomon, any institution at which any subsidiary school refused to allow military recruiters to recruit on equal terms would lose all federal funding across the board — not just funding for that subsidiary school. If HLS had continued to treat military recruiters differently, Harvard Medical School would have lost millions of dollars in grant money, as would various other Harvard institutions over which Kagan had no authority. Unsurprisingly, it was not Kagan’s place to make this university-wide decision — that was the place of one Lawrence Summers, then President of Harvard University. Who knows what Kagan would have done if the choice were hers alone and the effects would have fallen only on Harvard Law? I suspect, given the paltry amounts HLS receives from the federal government (as opposed to other Harvard entities), that she might have stuck it out.
May 10, 2010, 12:31 pmBrett Bellmore says:
It’s my position that she didn’t have to defend book banning in order to defend McCain/Feingold. But she did, presumably because she DOES think book banning constitutional. Or she’d have found lesser grounds on which to defend the law. Though, yes, an actual civil libertarian WOULD resign rather than defend McCain/Feingold.
I do understand the SG’s job, and it didn’t require her to defend book banning in the CU case. I understand what lawyer do, too.
Does understanding something really demand that you approve of it? I don’t think so…
May 10, 2010, 12:36 pmMaryG says:
“She has no acocmplishments other than “being a lady”?”
Her career climb was greatly enhanced by her gender, as is this Supreme Court nomination. (If a man, no consideration, period.)
Accomplishments?
1 SCOTUS case argued… and lost.
No judging.
1 internship writing opinions for a SCOTUS justice.
Assorted, unrelated schmoozing and politicking raising money and “poaching” conservative scholars to upgrade her school. Installed a skating rink to keep Harvard students happy.
That last graph won’t translate well to SCOTUS work, unless schmoozing and “convincing” of Alito, Scalia and Roberts is going to work. I doubt it.
Test her judicial skills on a smaller playing field before she gets to call balls and strikes in the pros. There’s no way to know if she qualifies on her skills alone — on the merits — based on the past, successful games she’s played.
Judging ain’t beanball.
May 10, 2010, 12:45 pmMaryG says:
“The Big 10 plays football? I thought they just fielded eleven random undergrads to get whupped by the SEC in bowl games? Go figure.”
Somebody had his nose stuck so far up in his books that he missed the Bowl games again this year.
Real life results, bub. We’re tired of bailing you geniuses, with little real world job experience, out.
May 10, 2010, 12:47 pmSigned,
Non-Academic America
J says:
“the military, which, if it were treated like any other employer, would have been totally banned from campus under Harvard’s binding non-discrimination policy”
Two problems with this argument:
1. The ban on openly homosexual soldiers is a federal law the military is required to comply with, not a military policy, thus the “offender” is the federal government. When schools like Harvard ban the federal government from recruiting and put their federal money where their mouth is, I’ll buy the principled stance nonsense.
2. Even if your statement is substantively correct, it’s very easy to portray Kagan’s behavior as anti-military, and I’m pretty sure it will be.
“I’m not sure the general public understands exactly what Kagan did do and did not do”
Let’s stipulate that this statement is correct. You don’t seriously think this makes any difference do you?
”This sounds a lot like Big 10 fans’ complaints about SEC football”
Or just the SEC.
May 10, 2010, 1:00 pmloki13 says:
Clearly you’re non-academic America, when you’re so adverse to facts. Here’s what you missed from parsing Elena Kagan’s resume:
1. Graduated Princeton summa cum laude (that’s fancy-pants latin for doin’ real good). Also received one of the highest honors Princeton has (in addition them fancy latin words), allowing her to study at Oxford, where she got her Masters in Philosophy.
2. Graduated with a JD from Harvard magna cum laude (more fancy latin words). She was an editor at the HLR (kind of like People magazine).
3. Law clerk on the DC Circuit (somewhat prestigious, right up there with American Samoa) and law clerk for SCOTUS (I hear they let anyone in, like Orin Kerr).
4. Tenured faculty at University of Chicago. Generally considered a TTT school, academically similar to Thomas Cooley.
5. Worked on legal team in the White House (also associate leagl counsel to the President and deputy assitant for domestic affairs and lady stuff), nominated for DC Circuit (again, think American Samoa) but stalled for partisan reasons (GOP thought it might be a stepping stone to her advancement as a high school civics teacher).
6. Professor at Harvard (where she authored a publication for the HLR on Admin law- that article was honored as the top admin article by the ABA Admin law division… some sort of Ladies’ group).
7. First female dean of Harvard Law School.
8. Solicitor General. Of lady things.
You’re right. Totally undistinguished!
As for the SEC, I pay no attention to Bowl Results. I guess I started to tune out, what with four national championships in a row for the SEC and five of the last seven. Wake me up when the Big Ten starts paying criminals like Maurice Clarett again.
May 10, 2010, 1:10 pmMax Power says:
I do think it arguably makes a difference in whether she should be confirmed. I don’t think it will make any difference in whether she will in fact be confirmed.
May 10, 2010, 1:15 pmChris Travers says:
How is this different from, say, Roberts?
If your job is to be an advocate, what’s the shame in being an advocate?
May 10, 2010, 1:26 pmChris Travers says:
I do. I know a bunch of conservatives who saw Roberts as too far to the left and Alito as an intelligent justice who would try to chip away at liberal precedents.
May 10, 2010, 1:36 pm» Mixed Views From Both Left And Right On Kagan Nomination Liberal Values says:
[...] a number of falsehoods being spread, with Media Matters debunking a long list of myths. The Volokh Conspiracy has some preliminary thoughts which show, while doubting the claims by some on the left that Kagen [...]
May 10, 2010, 1:37 pmChris Travers says:
Well, if we want to get rid of the most common form of censorship today, we could insist that Obama nominate Kosinski so that the obscenity exception may be more open to scrutiny….
May 10, 2010, 1:39 pmU.Va. Grad says:
Now, now. That’s unfair to Cooley. Everyone knows that Chicago is only on the level of People’s College of Law.
May 10, 2010, 1:40 pmChris Travers says:
I took a slightly different view.
At the first hearing she did defend book banning, presumably because she felt that federal election law was fulfilled a very compelling interest and that it wasn’t really possible to draw lines between media.
At the rehearing, she appeared to draw a very wishy-washy line, namely that books were not automatically protected from scrutiny under the law, but that it was hard to imagine a book that could be banned.
To me this suggests she hadn’t really thought about the issue until it was asked at the first hearing, and that she was answering from framework, if you will, rather than having had a chance to really think it through.
May 10, 2010, 1:46 pmJohn Herbison says:
Uh, the last member of SCOTUS nominated by a Democratic president, prior to Justice Sotomayor, was a married Jewish man, reared in California and educated at Stanford, Oxford and Harvard, most of whose career was spent in Washington, DC and Boston.
May 10, 2010, 1:46 pmMark says:
John Herbison,
Of course, you’re right. As the father of three daughters, I was concentrating on the most recent female nominees to the Court (including Miers), and I thought that I had stated that restriction, but I did not. And of course, Justice Breyer is far different from your run-of-the-mill bi-coastal, Jewish, Ivy-league-educated lawyer. I guess. That Stanford and Oxford part really makes him a “wise Latina.”
Mark
May 10, 2010, 1:58 pmSecond history says:
MaryG says:
Accomplishments?
1 SCOTUS case argued… and lost. …
Wrong. She has argued six cases as SG, and she is 1-1 (so far):
May 10, 2010, 2:10 pmRPT says:
How much time do you spend watching EWTN?
May 10, 2010, 2:15 pmDavid M. Nieporent says:
You’re right about the government’s position — but one problem with your argument: Kagan didn’t argue for the government at the first hearing. Deputy SG Malcolm Stewart did.
May 10, 2010, 2:29 pmStephen Lathrop says:
I probably wasn’t as clear as I should have been. You apparently concluded that I object to the corporate form. I don’t, at least not in principle. It seems to me that business corporations have shown themselves to be the best systems available for mobilizing and deploying capital to meet commercial needs.
My problem is that I think that’s ALL they should do, and corporate executives think otherwise. Corporate executives show every day that they think they should be able to make laws, field police forces, conduct wars, make foreign policy, dodge taxation, pillage the commons, disallow organized bargaining by their employees, divert capital to their personal use, pit governments against each other, and determine the outcomes of the political process.
Liberals seem to have divided themselves (I didn’t do it, really) over the question of whether those kinds of corporate behavior ought to be contested by government, or whether it is better to join in, so long as the opportunity to join is extended with sufficient generosity to various identity groups.
Obviously if that division among liberals is invisible to you, then you can’t address my question about which side of it Kagan is on.
May 10, 2010, 2:33 pmSecond history says:
DangerMouse sez:
You assume she doesn’t really believe in banning books. But she probably does believe in banning books, as most libs hate freedom of speech when such speech attacks liberal ideologies.
Perhaps you have her confused with Robert Bork, who explictly endorses censorship:
May 10, 2010, 2:34 pmMichael B says:
If what I’ve been able to discover, she hired an absolute minimum number of conservatives. Three, perhaps, out of a total of what at Harvard Law? 100+? I don’t know, but tokenism of this degree, if those numbers are even roughly correct, amounts to nothing more than a type of CYA decorous quality.
Kagan virtually is Obama, with a twenty or thirty year-plus tenure prospect. Never mind her decidedly leftward scholarship
May 10, 2010, 2:39 pmMark says:
Because I’ve received a number of lovely contemptuous emails regarding my posts here, I’d like to add a more global comment on this nomination.
First, we Democrats put religion onto the table. During the Roberts and Alito nominations, it was Democratic Senators, as well as Democratic and other Left commentators, who put religion into the discussion.
Second, we Democrats made identity politics a greater issue when Sotomayor was nominated. Her background — Bronx, welfare, Puerto Rican — was touted as positives for the Court. Her comments regarding the benefits to the bench of the diversity of backgrounds of the judges — exemplified in the phrase “wise Latina” — only amplified the importance of identity politics for judicial nominations.
So now that we have the chance for another pick, it is certainly worthy of comment — and criticism — that three of the last four Democratic picks have been Jews and three of the last four Democratic picks have been from New York and three of the last four female picks have been unmarried. Not to mention that all of the members of the Court will now be Ivy educated, all but one of the members of the Court will be, for all intents and purposes, from the coasts (although even Georgia is a coastal State), and none of the members of the Court will be Protestants (in a nation that is 75% Protestant).
Either identity politics matter or they do not. Either there needs to be some cultural connection between the nation as a whole and its government or there does not. In my opinion, if one branch of government is dominated by a group that is as narrow in background as this one, I believe that it will harm our democracy. The real danger is not disagreements between conservatives and liberals; as during the Lochner era, the real danger to our law and democracy occurs when the Court is so narrow and insular in background that it can’t even understand the views of the majority of people in the nation.
So please: no more emails accusing me of being anti-Semitic or anti-Hispanic or anti-woman. I am none of those things. My perspective is, first, a concern for the effect of a lack of geographic, cultural, and educational diversity on the Court and on our law. I don’t believe that the Court’s narrowness of backgrounds will be good for the nation or our law. Secondarily, my perspective is about elitism, and its effect on our law and politics.
So the identity politics (to use a negative) and the diversity aspects (to use a positive) of this nomination are weak. Moreover, on the substance, I see nothing in Kagan’s professional career to warrant support. As a scholar: two law review articles (neither of which has been cited significantly with the legal academy) regarding Executive Branch decisionmaking. As a dean: an 8-0 loss on the Solomon Amendment case followed up by no principled action, and the ability to get some tenure decisions made (be sure to check out her affirmative action credentials — if she were a Republican appointee, there would be HOWLS of protest). Maybe she is a great oral advocate; I’ve never listened to her arguments. But I’ve not heard any defenders say, as with Roberts, that she sets the standard for oral advocacy.
On the substance, we can do so much better. Sitting judges (like Wood and many others) who have actually had to make hard decisions. Senators. Cabinet members. They’ve all done something real, something that matters outside of a faculty lounge. And they can even widen the apparent backgrounds and actual personal perspectives of the members of the Court. Kagan, however, both lacks significant professional accomplishments on tough issues and she fails to add any true diversity to the bench.
She’s just a bad pick.
May 10, 2010, 3:06 pmresh says:
“So, in contrast to Kagan, why was she not chosen?”
Obama will shift to the right as the midterms near. He only welcomes the echoes of liberalism when he’s in Cali or in front of a liberal crowd.
The democrats are going to get pasted in the midterms; Obama knows this. By picking Kagan contra Wood, whom I gather is a fierce liberal and would have been branded as such in the confirmations, Obama takes the liberalism card out of play and minimizes the Novemberpolitical storms. Kagan is clearly not a bluedog or flyover material but her nod to the Federalists and winks to the conservatives will keep the GOP bloodhounds quiet for the summer.
In short, Wood is a victim of midterm politics.
May 10, 2010, 3:16 pmBeldar says:
Comparisons to Harriet Miers are indeed off base, but not for the reason I think Prof. Somin probably had in mind. Ms. Miers, whose credentials were very much in the mold of Justice Powell’s, had been a successful practicing lawyer and the managing partner of a major Texas law firm. Her clients included Microsoft, Disney, and yes, George W. Bush as governor and president. She beat noted UT law prof Sandy Levinson on a federal court challenge to Bush & Cheney’s constitutional qualifications under the Twelfth Amendment. Ms. Miers’ objective qualifications were better than Ms. Kagan’s. It’s a damned shame that snobs — unfortunately including the overwhelming majority of legal academics — were so dismissive of someone who’s actually had conspicuous success in the practice of law on behalf of real-world clients outside the Beltway and for more than a year or two.
That said, I don’t disagree that Ms. Kagan’s qualifications, which mostly amount to being an example of the species lawyerus politicus and being a law school administratrix, are nevertheless adequate.
May 10, 2010, 3:59 pmDavid M. Nieporent says:
You’re confused. It’s Harvard University, not the Law School, which was “taking the money,” and Kagan had no say in that.
May 10, 2010, 4:14 pmloki13 says:
I don’t think you understand what “objective” means.
Ms. Miers had two fatal problems, both of which you omit:
1. Her lack of a paper trail, and the possibility that she might be somewhat less than a staunch movement conservative, frightened the base. This is what relly killed her nomination- lack of support from the conservative side.
2. Her nomination supported the meta-narrative of the Bush years- that political positions, contracts, jobs etc. were completely divorced from merit and instead were simply awarded based on personal whim to enrich / reward political friends and buddies of the President and other officials in the executive branch. She just happened to catch the backlash.
May 10, 2010, 4:24 pmMark says:
Mr. Nieporent:
I’m not confused. Harvard Law School is part of Harvard University, and Harvard Law School does receive federal money. It’s not as much as other parts of Harvard, but it’s more than $0. Moreoever, I did not miss the news stories about her strong advocacy within Harvard to stop taking federal money, because there were none. As if, somehow, Kagan’s views regarding the Solomon Amendment were different from those of the rest of the general Harvard community.
It’s quite convenient for Harvard (including the Law School, the Medical School, and the Faculty of Arts & Sciences) to object to the Solomon Amendment as vociferously as they did and then to turn tail when it comes time to actually pay a price for their stance. It’s silly. It’s smug. It’s vain. Arguing that there’s nothing Kagan could do to put action behind her words is simply not true. I’m not confused about that at all.
Mark
May 10, 2010, 4:32 pmJ. Aldridge says:
Oh please, Scalia is no originalist, he’ll buy into any lie if it is told often enough.
May 10, 2010, 4:39 pmChris Travers says:
Ok, my mistake.
But that would suggest that her “pro-book-banning” arguments would be really truly narrow. I.e. she said that if a book met the electioneering criteria it would fall under the law, but that she couldn’t imagine such a book existing. Consequently, that’s not much of an argument for banning books.
IOW, she didn’t argue for banning books in general, and she couldn’t imagine a book that would be banned. I bet that anyone can imagine a book that would be banned as obscenity, however….
May 10, 2010, 4:48 pmDavid M. Nieporent says:
(1) What federal money does HLS receive?
(2) Regardless, when did it become Kagan’s decision as to whether Harvard University, Harvard Law School, or any other subsidiary part, should accept federal money?
You’re not only confused, but confused about being confused. Harvard University was not turning down a hundred million dollars because Kagan doesn’t like DADT. Kagan could have armed the faculty and students of the law school with WMD and threatened to use them, and the university still wasn’t going to turn down the funds. If you want to argue that she was inconsistent, you can argue that should she should have resigned in protest. But nobody can reasonably argue that there was some way for Kagan to stop Harvard from accepting federal funding.
May 10, 2010, 4:52 pmPaul A'Barge says:
You law professor types have to help me out here, please. I keep reading fairly reputable Libertarian law professors saying that Kagan has “Relative Openness to Non-Liberal Views of the Law”.
Fine. That’s nice.
But it was Kagan who kicked out the US Military JAG recruiters from the Harvard Law campus. And despite the fact that DADT is official US government policy as codified by the US Congress (and NOT military policy), Kagan has chosen repeatedly to make incendiary comments about DADT, describing DADT as “military policy”. Clearly, the woman despises the US Military. Clearly the woman is either a moron or someone willing to stretch the facts like a rubber band in order to bully and belittle the US Military.
So, here’s where I need your help … how do I square her record of actions and statements with this supposed “relative openness”?
No wait, where I really, really need your help is this: how do *YOU* square her record of actions and statements with your own statements attributing to her this supposed “relative openness”?
Or, is Law Professor-hood some kind of a smarmy, vapid, tragic morality-free zone? And are all the negative things that people say about lawyers double-right when used to describe law professors?
Just askin’, ‘kay?
May 10, 2010, 4:53 pmPHil says:
Mark, your not only confused, you’re not making sense, how do people, here, know your e-mail? Which of the many Marks are you? And how did they get your e-mail?
May 10, 2010, 5:10 pmDavid M. Nieporent says:
This seems really petty as an argument. The military didn’t make the policy, but it’s a policy which applies to the military, or, as it might otherwise be known, a “military policy.” The military doesn’t make its budget, either; Congress does. Still, we’d have no problem discussing the “military budget” in the U.S.
Oh, clearly.
May 10, 2010, 5:14 pmMaryG says:
You’re right. Totally undistinguished! As for the SEC, I pay no attention to Bowl Results.
I didn’t ask you what sheepskin she’s collected… I asked for results: what she DID with all that edumakation. What is the SCORE on the scoreboard now, at mid career?
Where are the … ACCOMPLISHMENTS? The WORK? The end product of all that brilliance?
Best start paying attention to the score. These fancy degrees don’t mean squat anymore, not after they continually need bailing out here in the Real World.
May 10, 2010, 5:40 pmloki13 says:
Clearly, the woman despises the US Military. Clearly the woman is either a moron or someone willing to stretch the facts like a rubber band in order to bully and belittle the US Military.
Clearly, you don’t understand what “clearly” means. Would you care to support your incendiary and close-minded comments with any actual quotes from Ms. Kagan that are against the military, as opposed to being against a particular *ahem* military policy that is at odds with the, um, Harvard anti-discrimination policy?
Cleary, you prefer slinging inaccurate trollish slurs to making substantive, and correct, factual statements that might advance the conversation.
Just sayin’, ‘kay?
May 10, 2010, 5:41 pmloki13 says:
I provided the relevant information. I think the summation I gave was a bit better than yours, as well. In addition, if one looks at her scholarly output, it is not two articles, as any quick search through Westlaw would tell you (hint- use au()). Or you can look at Eugene’s excellent post on the topic, supra.
So, you kepe saying she’s just done some “lady stuff.” Other people point out that she has a distinguished educational background (in terms of those fancy degrees and latin words and two clerkships at the most distinguished courts in the country), political background (working as legal counsel and policy in the White House and as Solicitor General), academic background (professor that has published numerous articles, including important ones) and adminsitrative background (as Dean of one of the two finest law schools in the country).
You would be hard-pressed finding a more distinguished legal background. And that’s the score, jack. Kind of like the thumping the SEC gives to the Big 10 in championship games.
May 10, 2010, 5:49 pmloki13 says:
Oh, she also did private practice for BigLaw. You know- the professor track. Long enough to make money (pay off the student loans, but not too long. ;)
Really, MaryG, your comments border on ludicrous. Like someone saying that McDonalds doesn’t serve very many hamburgers, and mainly benefits from Clown affirmative action.
May 10, 2010, 5:53 pmChris Travers says:
Esp. when a speech surfaced suggesting where she suggested that as she aged, she became more pro-Choice…… She withdrew the next day….
May 10, 2010, 6:11 pmPHil says:
MaryG does sound ludicrous. It’s like a parody: so what if she was Dean of Harvard Law, was part of two high powered law faculties, worked in the White House, for the Judiciary, on the Hill, and in one of the best firms in Washington. That’s all nothing.
May 10, 2010, 6:11 pmAndy Jackson for me says:
My reflection and realization is that all law works for money, government, and minorities. As a matter of practicality in the new america the rest of us are screwed.
Sometimes I think if I look long and far enough I’ll find a secret and overlooked reboot button that wipes out everything except the constitution as it was handed to us the people, (and of course with the first 10 amendments. And that’s how we’ll start over, and any new amendment will be known by everybody exactly what it means, and we will know how and where the judges start their reinterpretin’, so’s we can stop it before it starts. Or elese its reboot time again.
May 10, 2010, 6:49 pmMark says:
Mr. Nieporent:
1. I don’t know the amount of federal funds that Harvard Law School receives. On August 26, 2002, Dean Clark stated that Harvard Law School did not receive “significant federal funding” in comparison to the millions in federal funds (approx. $328m) that would be lost by the entire University if Harvard were to refuse to permit the armed forces recruiters on campus. I am confident that Dean Clark would have said that Harvard Law School received no federal funds if that were the case. That’s why I said that the amount is more than $0. If you have any basis to say that Harvard Law School did not and does not receive any applicable federal funds, please provide your source.
2. Straw man: “If you want to argue that she was inconsistent, you can argue that should she should have resigned in protest. But nobody can reasonably argue that there was some way for Kagan to stop Harvard from accepting federal funding.” I didn’t argue that Kagan could have stopped Harvard University from taking federal funds. Furthermore, I don’t know whether Kagan could have stopped Harvard University from taking federal funds. What I do know — and what I argued above — is that she did not publicly try. I argued above that Kagan could have done something — some action of some sort — to back up her view that the Solomon Amendment/Don’t ask, don’t tell are morally reprehensible. You have not refuted that argument. You even point out that she could have resigned. She also could have returned any federal money that the Law School had received. She could have refused (or at least publicly advocated) to allow the Law School to take federal funds in the future. (If the Law School truly does receive no federal funds, that would at least give the appearance of doing something.) There are many other actions that she could have taken, but she did nothing of substance. So, to be precise, although you have given me permission to argue that Kagan was being inconsistent, I’d prefer to stick to the argument that I actually made. She was feckless — silly, smug, and vain. In light of those things, I couldn’t care less whether she was consistent or not.
PHil: I don’t know how anyone got my email address. I suspect it was from a prior discussion. You’d have to ask them, I suppose.
Mark
May 10, 2010, 7:15 pmMark Field says:
He’s not me. Nor I him, for that matter.
May 10, 2010, 7:18 pmBrett Bellmore says:
If you’re a hit man, what’s the shame in murdering people?
I think you have to realize that there CAN be shame in being an advocate, if you’ll advocate anything if the check clears.
May 10, 2010, 7:30 pmloki13 says:
Andy Jackson for me: Sometimes I think if I look long and far enough I’ll find a secret and overlooked reboot button that wipes out everything except the constitution as it was handed to us the people, (and of course with the first 10 amendments. And that’s how we’ll start over
Wow. I guess you really live down to your namesake. Some of us see a few flaws in the original Constitution, and our rather fond of amedments like the 13th and 14th. By the way, the Constitution is not a holy document, and it was not handed down from on high like tablets from a mountain- our founders were men, not gods, and would be sickened by their posthumous deification. I prefer to praise the, instead, for doing a damn good job.
May 10, 2010, 7:52 pmB-Rob says:
You start from an opinion — that Kagan was an “identity politics” choice. You then define it as being Jewish (or Catholic in the case of Sotomayor), from New York, and being single (or married, like Ginsberg). And another thing — the “wise Latina” is a divorcee, not a “never been married” like Kagan, or married close to 50 years like Ginsberg. Ginsberg has kids, the other two don’t.
In fact, the three women only have four things in common — they are Ivy League Dem women from New York. But how is that any more “identity politics” than Scalia and Alito being married,Catholic, Italian, Ivy League Republican males from New York/New Jersey? It is an empty phrase, this “identity politics” — an intended pejorative that, in fact, explains nothing in particular.
Wood was not selected, I believe, because she would have gotten bogged down on abortion. My theory: Obama did not want the 2010 election cycle to be about abortion. He would rather have the conservatives implode over whether to opposed Kagan because she might be gay, a redo of the cons losing their minds over the “wise Latina” last year . . . which turned out so swell where the Latino vote was concerned. Want to REALLY ensure that the moderates vote Dem in 2010? Give the right wing some good gay baiting material to chew on.
Look for Wood to be chosen on the next opening, a year from now. She is smart, tough, and will make those GOPer Senators with the Southern drawls look foolish asking her to “explain herself” as to why a pregnant woman, and not those Southern senators, should be calling the shots on her own life. The 2011 confirmation battle will not carry over to 2012, so Obama will wage that war at that time.
May 10, 2010, 8:31 pmB-Rob says:
A Supreme Court clerkship is now an “internship” . . . because Kagan had one, I guess. Roberts’ clerkship, of course, was so much more important that hers. Just like Obama’s magna cum laude degree from Harvard is somehow less deserved that Roberts’ or Breyers’.
She hires conservatives while she is a very young and successful dean of a top five law school (as opposed to passing over conservatives), but you find a negative in that, calling it “poaching”.
She didn’t have judicial experience because . . . the GOPers blocked her nomination in 2000! Why should that be held against her?
Is that the best that the GOPers have against her? That she should not be credited for her obvious successes because her opportunity, her “shot” at success or failure was supposedly due to her gender? Why does this make sense to you?
May 10, 2010, 8:45 pmB-Rob says:
On Mars maybe . . . .
May 10, 2010, 8:50 pmJ says:
“Would you care to support your incendiary and close-minded comments with any actual quotes from Ms. Kagan” that are against the military, as opposed to being against a particular *ahem* military policy that is at odds with the, um, Harvard anti-discrimination policy?”
Actions tend to be a far more accurate gauge of one’s beliefs than quotes. And you might want to work on getting your incendiary and close-minded facts straight. Again, there is no military policy, ahem or otherwise; there’s a federal law the military is required to comply with. If one opposes that law, their issue is with the federal government, not the military. Of course expressing opposition there might actually carry some cost.
“Cleary, you prefer slinging inaccurate trollish slurs to making substantive, and correct, factual statements that might advance the conversation”
What color did you say that kettle was?
May 11, 2010, 12:06 amAntimedia says:
I have a question for David Welker. Since you know her, perhaps you can address an issue that was raised today – her handling of plagiarism charges against Lawrence Tribe and Charles Ogletree. Does the article mischaracterize what took place? Are the charges valid? Relevant? (I’m asking because I really don’t know, and I don’t really trust anything except source material any more.)
May 11, 2010, 12:19 amRich Rostrom says:
loki13: “numerous articles”?
Her bio at Judgepedia lists a total of eight law review articles. One of those was a two page encomium to Richard Posner. That’s a pretty thing record for 14 years as professor and dean.
May 11, 2010, 11:40 amJeff Perren says:
By what criteria, political experience? So, now someone who is to be one of the nine Supreme judges in the land doesn’t need to have been a judge at all?
She has zero experience as a judge and nearly none as a litigator. She has been Solicitor General for a year. She’s less qualified to be a Justice than Obama was to occupy the Oval Office, and that’s independent of her political philosophy.
I guess I am qualified, then, to be the CEO of Random House publishing company.
May 11, 2010, 2:05 pmSarcastro says:
You can learn a lot from holding a job. Thomas learned to be a Justice in his one year as a Judge.
It took Roberts 2 years, but then he was learning how to be Chief Justice.
Kagan has 0 years! 1 year is like infinity more than zero years!!
May 11, 2010, 3:59 pm