In the Whitewater case, she worked to deflect a Senate subpoena for notes of meetings between the White House and private lawyers. She solicited supportive statements or op-ed articles from former officials and law professors, even ghostwriting or editing some of them.
I don’t this reflects badly on Kagan; her job was to defend Clinton. But I’d be very curious to know which law professors, if any, thought it was appropriate to sign their name to a piece ghostwritten by a member of the Clinton administration, defending Clinton.
Truffle says:
Perhaps we should have them prosecuted for engaging in a fraudulent scheme to influence a debate!
June 11, 2010, 9:22 pmPeter says:
Maybe professors who had practiced and put their names on briefs written by their associates?
June 11, 2010, 9:30 pmDisplaced Midwesterner says:
Or who put their names on articles written by their students?
June 11, 2010, 9:42 pmNunzio says:
Larry Tribe.
June 11, 2010, 9:43 pmerp says:
nun, that would be my first pick too.
June 11, 2010, 9:51 pmgordon says:
Mr. Bernstein,
Do you believe that it should be legal for a private restaurant owner to refuse to serve an African-American customer because the owner doesn’t like black folks?
June 11, 2010, 10:00 pmnicehonesty says:
It should be just as legal as it is for public officials to refuse membership in a caucus to whites and asians because the caucus leadership doesn’t like white or asian folk:
June 11, 2010, 10:04 pmoregonducks says:
This is the second time in as many days that Mr. Bernstein has relied on NYT reporting as factual.
June 11, 2010, 10:05 pmgordon says:
dishonesty-
I know you are ever eager to hump Mr. Bernstein’s leg, but the question was addressed to him, not you.
June 11, 2010, 10:08 pmnicehonesty says:
gordon,
Do you think it should be legal for public officials to refuse membership in a caucus to whites and asians because the caucus leadership doesn’t like white or asian folk?
June 11, 2010, 10:09 pmSteve says:
But I’d be very curious to know which law professors, if any, thought it was appropriate to sign their name to a piece ghostwritten by a member of the Clinton administration, defending Clinton.
I’d be curious to know who doesn’t think it’s appropriate. Heck, as a practitioner I ghost-write affidavits all the time. Imagine, the horror of signing an affidavit in support of someone that was actually written by that person’s lawyer!! Unheard of.
As long as the signer agrees with what they’re signing, that’s what matters. There’s no fraud because there is no representation that the document is the signer’s personal work product, only that the signer puts their name to it. We’re not talking about a Torts final here.
June 11, 2010, 10:10 pmAJK says:
I think by now it should be obvious that Bernstein’s about as likely to respond to you as you are to respond to this. (Do you even bother reading threads after spamming them to see?) So why are you wasting your time? Do really have that much free time?
June 11, 2010, 10:10 pmdeclerk says:
DB
If you are ever fortunate enough to achieve prominence in your field you will discover that it is quite common to have people approach you to submit ghost written op-eds, letters, etc..
You implication that it is untoward or somehow improper simply betrays your status as someone well outside circles of influence.
June 11, 2010, 10:12 pmGuy says:
Has the caucus ever denied membership to a white or Asian representative who tried to join? On what basis do you assume that they don’t like white or Asian people? In any event, it almost certainly could not be Constitutionally outlawed because any attempt to do so would be a violation of the Speech or Debate Clause, and also probably of the First Amendment (they’re not a public accommodation, as far as I know).
June 11, 2010, 10:14 pmnicehonesty says:
Guy, read the link I provided.
Since you’re either still incapable of reading for comprehension, or you’re still dishonestly trying to sow confusion by raising questions that are already answered by the information provided, I don’t have anything more to say to you on the matter.
June 11, 2010, 10:18 pmGordon says:
“Do you think it should be legal for public officials to refuse membership in a caucus to whites and asians because the caucus leadership doesn’t like white or asian folk?”
Yes.
“I think by now it should be obvious that Bernstein’s about as likely to respond to you as you are to respond to this.”
Oh, I don’t know, I hold out hope that Mr. Bernstein will somehow gain the courage to publicly state his views. I mean, what does he have to lose? Does he imagine that he’s going to be appointed to the 4th Cir. bench if he just keeps mum about this? As long as he keeps trotting out corporate propaganda, the Koch Foundation or whoever will keep paying his salary. There’s always hope, isn’t there?
June 11, 2010, 10:18 pmnicehonesty says:
gordon/Gordon,
Do you believe that it should be legal for a private restaurant owner to refuse to serve an African-American customer because the owner doesn’t like black folks?
June 11, 2010, 10:21 pmDavid Bernstein says:
I’ve been approached (though not often), and I know it’s reasonably common.
June 11, 2010, 10:23 pmleo marvin says:
Finally, a comment thread question to which there isn’t an obvious answer: “Whose trolling is more obnoxious, gordon’s or nicehonesty’s?”
June 11, 2010, 10:27 pmnicehonesty says:
Thanks, leo marvin. Your continued willingness to jump in to defend bigoted commenters from any challenge by me is noted.
It would have been surprising if you’d actually contributed to the discussion. Your actual comment? Not so much.
June 11, 2010, 10:31 pmGordon says:
“Do you believe that it should be legal for a private restaurant owner to refuse to serve an African-American customer because the owner doesn’t like black folks?”
Yes.
June 11, 2010, 10:34 pmwm13 says:
I’d be more curious to know which law professors are not political hacks utterly lacking in intellectual integrity. That would be a shorter list than those willing to sign a lib/lab petition drafted by a Democratic White House flunky, I fancy. Another reminder of how to treat those fund-raising appeals from Dean Edley.
June 11, 2010, 10:38 pmperusual says:
“I don’t this reflects badly on Kagan; her job was to defend Clinton. But I’d be very curious to know which law professors, if any, thought it was appropriate to sign their name to a piece ghostwritten by a member of the Clinton administration, defending Clinton.”
If you don’t think it reflects badly on Kagan, do you think it reflects badly on any law professors who might have signed such a ghost-written piece?
June 11, 2010, 10:40 pmRowerinVA says:
Bernstein is quite prominent in intellectual circles. A lot more so than some people who’ve recently been elevated to high positions (Sotomayor) or almost were (Dawn Johnsen, Harriet Miers). Like him or hate him, he’s published books, gets visiting offers, speaks on panels, and is read by people who often disagree with him … and not only about Israel/Zionism/Arab terror.
Sunstein is prominent. Goldsmith is prominent. Barnett is prominent. Kerr is prominent. Look at their citations. You don’t have to agree with all or any of them to admit their prominence.
But who cares? Credentialism and ad hominem attacks aren’t argument, they are just whining. Deal with the man’s arguments or don’t clutter his blog.
Which brings me to the real question. If he’s not prominent, why do you bother posting against him? That just makes you a stalker, doesn’t it?
June 11, 2010, 10:43 pmGuy says:
The link doesn’t say, nor could it have unless the writer could see the future. Though I suppose I can assume that he was eventually formally or informally denied membership since he apparently hasn’t become one, whether that’s because of race or party affiliation is entirely unclear. Party affiliation seems a more likely factor to me as long as I’m engaging in speculation. Not that that matters because I made my statement about the Speech or Debate Clause under the assumption that they were blatantly racist.
June 11, 2010, 10:52 pmPatty Shundynide says:
I thought Bernstein already answered the question when he said he supported the CRA. That is, it shouldn’t be legal. Am I wrong?
Either way, please stop repeating the same question over and over again, Gordon. After a certain number of repetitions it’s just trolling.
June 11, 2010, 10:59 pmDG says:
{Do you believe that it should be legal for a private restaurant owner to refuse to serve an African-American customer because the owner doesn’t like black folks?}
Do you believe that it should be legal for a lawyer to refuse to use a brief written for him/her by a well-connected African-American administration staffer because the lawyer doesn’t like black folks?
Answer the question, trolls!
At some point, its ludicrous.
June 11, 2010, 11:08 pmgeokstr says:
Based on the well known truism about stopped clocks, I believe Prof Bernstein can safely rely “on NYT reporting as factual” only two more times over this two day period. After that such reliance gets really, really iffy.
June 11, 2010, 11:21 pmgeokstr says:
In addition to the link provided by nicehonesty, here is another one:
June 11, 2010, 11:31 pmBlack Caucus: Whites Not Allowed
It tells of a white congressman who won in a majority black district just a few years ago, and was told in no uncertain terms that whites were not welcome. It also says Pete Stark tried to join in 1975 and was told the same thing.
Steve says:
If he’s not prominent, why do you bother posting against him? That just makes you a stalker, doesn’t it?
I don’t know who you’re arguing with, but I assume they must be prominent.
June 11, 2010, 11:33 pmMahan Atma says:
“…but I posted it anyway because I think it reflects badly on Kagan.”
VC – the masters of the passive-aggressive post.
June 12, 2010, 12:22 amMahan Atma says:
VC — the masters of the passive-aggressive post.
June 12, 2010, 12:29 amspittake says:
“Bernstein is quite prominent in intellectual circles. A lot more so than some people who’ve recently been elevated to high positions (Sotomayor)”
It’s nice to see that David’s wife reads this blog.
June 12, 2010, 1:04 amo-trail says:
So, DB doesn’t think this reflects badly on Kagan and he understands that it is a common practice for prominent academics to lend their name to ghost-written articles.
Yet still he wonders who the academics were. Why is that?
June 12, 2010, 1:08 amPatty Shundynide says:
Or it demonstrates that you’re willing to alienate your fellow commenters by engaging in a bizarre vendetta that Bernstein is probably right to ignore. To support the passage of the CRA means to support making the discrimination you cite illegal. If I support the passing of sentencing laws that provide for capital punishment, it means that I think that capital punishment should be legal. If I support the passing of laws that criminalize the trafficking of drugs, it’s straightforwardly obvious that I think drug trafficking ought not to be legal. So Bernstein’s answer is actually pretty clear: he doesn’t think it ought to be legal — he supports the passage of a law which makes it illegal.
But you’re obtuse; so you persist in trolling. I hope he bans you for being childish and obnoxious.
June 12, 2010, 1:43 amORID says:
For anyone who cares to access the Clinton Library Documents.
I ask you to look at her DPC documents. I submit to you, Box 36, File 036-001, “POTUS Press Conference-Meet the Press November 6, 1997″. Open that file and start at Page 21. She ghost wrote (among others) for a Meet the Press appearance. Furthermore, I didn’t realize all those shows were heavily scripted, guess I’m naive.
Her work in the Clinton administration is a huge blemish on her record. I’ve been onto this for the past couple of weeks, since my political antenna went off. I don’t think Supreme Court Justices should be this much in the tank for certain policy. I think the Presidential advisor totum pole went something like Rahm–>Bruce Reed/Kagan.
Want another doozy? Box 051, Folder 001 (Race-Race Initiative). Look through the first excerpted book. Can’t tell who underlined what; but clearly the writing on Page 24 is Kagan’s. Page 45; who is copied? Reed, Kagan and COS (Rahm). Same .pdf file, Page 61 she is talking about strategizing vis-a-vis Gingrich. Someone tell me another recent Supreme Court justice actively involved in political negotiating?
I know the legal community would be up in arms, in fact the meme is something like, “If Kagan isn’t qualified, who is?” Well, its not her qualifications that will end up doing her in, its her clear bias. No other recent Justice will ever have worked in the inner-circle of the President; in fact I think the last nominee similar to Kagan’s position was Miers. Certainly Kagan comes off as more scholarly.
Can I be the first person to throw this out there. “I did not have sex with that woman, Miss Lewinsky.” Do you think Elena had a hand in that speech too? We’ll never know because no doubt those would be redacted… worth questioning her about.
For those who say she is “following her boss” or whatever; how would you feel about Karl Rove getting nominated? Wait, he has obvious bias… why is that? Because he worked on policy and politics and worked on making Bush look awesome. Kagan had her hand in the politics jar as well. The point is, she actively thought about ways to win the politics game over Republicans, get Clinton re-elected, etc. How can those actions not justify being disqualified from the Supreme Court? I’m so mad that this is getting downplayed all over the place (not surprised, did Kagan ghost-write Miguel Estrada’s endorsement as well?).
I’ve never seen Executive level memos in this detail; its quite damaging to a citizen who believed everything I was taught in Civics class was mostly correct.
June 12, 2010, 3:51 amORID says:
The people it really reflects poorly on is newspaper editorial boards and the media. The same way the whole Meet the Press script does. The same way other co-ordinated media appearances do.
And I’m sick of the media writing as the NYT says, “As an associate White House counsel from 1995 to 1996, Ms. Kagan provided advice to a president with his own political agenda, so it is hard to gauge how much her analyses reflected her own views…”.
Really?! I suppose I can understand clerking for a judge you don’t agree with. But people don’t work in the White House at the intersection among inner halls of politics solely based on their excellence… you also need to drink the party kool aid. Do people think that Karl Rove may not hold neo-conservative views even though he worked in the Bush White House? Was he simply also just doing what Bush wanted? How about Miers?
Here’s what someone wrote a month ago on Kagan: “Kagan has held government positions where real legal thinking was required and a much better resume than Miers”. Real legal thinking was involved in ghost-writing domestic policy media appearances? Okay, I admit that is too harsh; she truly looks like a loyal, smart, hard-working and capable adviser. However, Clinton immediately nominated her for Appeals Court in 1999. Wonder why?
I really don’t care if Obama nominates someone more “liberal” or “worse”. Both political slants have their plusses and negatives. The reason we have the Supreme Court is to adjudicate “cases and controversies”. It doesn’t look like Kagan has spent much time working on cases or adjudicating “cases and controversies”. If she wants to use her beast lawyer skills to advance policy and a certain agenda, she should try to do so from the other side of the Bench.
June 12, 2010, 4:17 amleo marvin says:
I said the same thing about your comments that I said about his (i.e., they were both trolling). If you think I defended him, you must also think I defended you. So you’re welcome.
June 12, 2010, 5:39 amDavid Bernstein says:
I said it’s common “have people approach [prominent academics] to submit ghost written op-eds, letters.” I assume many prominent academics either say no, or at least insist on substantially rewriting drafts, and I would surprised if it were common for prominent academics to be approached by high-level government officials to parrot the administration’s line.
June 12, 2010, 6:07 amRichard Riley says:
The distinction between “former officials” and “law professors” in the NYT item is important. I kind of assume that op-eds by Senators, Attorneys General, etc., or former ones, will typically be ghost-written – except for a few, Orrin Hatch being an example, who do their own writing. I don’t like it, but I think ghost-writing is basically understood for those people.
For law professors, though, I think it’s actually part of their job to be decent writers – or in any case a good law professor, like any good lawyer, should be a good writer. The WAY they articulate something, not just the fact that they think it, is important. So I think it is totally appropriate to want to know if any prominent law professors just signed their names to Kagan’s words.
June 12, 2010, 9:15 amAndrew says:
Mr. Bernstein, do you have any reason to suspect that the officials thought rewritting was necessary? So long as they agreed with what was written, why wouldn’t they sign it?
What specific problem do you see with that.
June 12, 2010, 9:33 amvirgo says:
“But I’d be very curious to know which law professors, if any, thought it was appropriate to sign their name to a piece ghostwritten by a member of the Clinton administration, defending Clinton.”
“I said it’s common “have people approach [prominent academics] to submit ghost written op-eds, letters.” I assume many prominent academics either say no, or at least insist on substantially rewriting drafts, and I would surprised if it were common for prominent academics to be approached by high-level government officials to parrot the administration’s line.”
Just to be clear here:
Do you believe it is “inappropriate” for a law professor to sign their name to such a ghostwritten piece without “substantially rewriting” it?
If so, what if the draft is well written and accurately conveys the academic’s views- Would it be “inappropriate” for the academic to sign it then?
June 12, 2010, 11:04 amSteve says:
Well, its not her qualifications that will end up doing her in, its her clear bias. No other recent Justice will ever have worked in the inner-circle of the President; in fact I think the last nominee similar to Kagan’s position was Miers.
The last Supreme Court nominee to have worked in a White House policy position similar to Kagan, was, in fact, Chief Justice John Roberts. Kagan was associate White House Counsel from 1995 to 1999; Roberts was Associate Counsel to the President from 1982 to 1986.
I am curious to know if this information alters your opinion in any way. Certainly I don’t recall anyone suggesting that the Roberts nomination was analogous to nominating Karl Rove.
June 12, 2010, 12:02 pmMLS says:
Whitewater was a private business transaction involving a financial investment(s) made by the Clinton’s in conjunction with the McDougals (sp?). It took place well prior to Clinton’s election as President and bore no relationship to Clinton’s status as an elected official. be it state or federal.
Given the above, I have to wonder why taxpayer resources such as Kagan were even being used in the first place?
The same can be said concerning the allegations contained in private lawsuits relating to Mr. Clinton’s alleged dalliances.
June 12, 2010, 12:25 pmORID says:
Kagan worked in the Domestic Policy Council. Have you looked through her memos? I haven’t even seen 10% of them, and they are obviously partisan and touch a wide number of issues. I don’t know what was in Roberts’ memo’s, but was he actively working with the goal of re-electing Republicans on his mind?
She was only associate council from 1995 to 1996… at some point she switched over to being Bruce Reed’s right hand in the DPC. Don’t whitewash her record. She didn’t have a strictly legal, lawyerly role.
I don’t know what in Roberts’ memo’s… however if he was working in a clearly partisan fashion I would’ve opposed him too.
June 12, 2010, 12:38 pmAndrew MacKie-Mason says:
I haven’t read any of Kagan’s briefs, but even assuming that your characterization of them is correct, it’s hardly grounds on which to oppose a Supreme Court nominee.
Without even questioning your characterization of her briefs, it sounds like she was doing her job, and exactly her job. There’s absolutely no reason to suspect that if she were appointed to the Supreme Court she wouldn’t also do exactly what her job is. Just because one job calls for partisanship doesn’t mean she’ll bring partisanship to the next job.
June 12, 2010, 12:50 pmbyomtov says:
DB,
I would surprised if it were common for prominent academics to be approached by high-level government officials to parrot the administration’s line.
Do you think your choice of the phrase “parrot the administration’s line,” as opposed to, say, “support the administration’s position,” might reveal just a bit of bias on your part?
June 12, 2010, 1:07 pmDavid Bernstein says:
Not if you are signing an op-ed written by a representative of the administration. I’d say exactly the same thing about a Republican law professor who signed an op-ed written by a Bush Administration official
June 12, 2010, 1:43 pmlgm says:
I thought lawyers would be better readers than DB. The article doesn’t say that Kagan ghost wrote for a law professor. It also doesn’t say what “ghost writing” consists of. It could be writing a whole piece, or it could be suggesting wording for a sentence or two. The same goes for editing.
Of course, as was pointed out before, this presumes that the NYTimes claim is correct, which DB would not stipulate on any matter involving Israel.
June 12, 2010, 1:49 pmDavid Bernstein says:
Ghostwriting an op-ed means ghostwriting an op-ed. However, it’s not clear whether she ghostwrote only for political types, or also for law professors, which is why I wrote, “if any.” And I’m happy to stipulate that the vast majority of what appears in the Times is factually correct, including about Israel. In fact, most distorted reporting, on most subjects, is much more a matter of who gets quoted, who gets ignored, and what context is included or left out, and, for that matter, which stories get reported and which stories do not.
June 12, 2010, 2:24 pmDavid Bernstein says:
Why do you think it reflects badly on Kagan? Ghostwriting can reflect badly on the ghostwritee, but why on the ghostwriter?
June 12, 2010, 2:32 pmAndrew MacKie-Mason says:
Professor Bernstein,
What level of personal rewriting do you think is necessary to make signing a piece legitimate? Assuming, of course, that that signature is demonstrative of endorsement of the ideas and arguments, not an attributional claim to the actual writing.
Andrew
June 12, 2010, 2:36 pmORID says:
I haven’t read any of Kagan’s briefs, but even assuming that your characterization of them is correct, it’s hardly grounds on which to oppose a Supreme Court nominee.
Without even questioning your characterization of her briefs, it sounds like she was doing her job, and exactly her job. There’s absolutely no reason to suspect that if she were appointed to the Supreme Court she wouldn’t also do exactly what her job is. Just because one job calls for partisanship doesn’t mean she’ll bring partisanship to the next job.
I’m not talking about her briefs. These aren’t legal briefs or memos. These are internal political memos written to advance domestic policy. Do you think it would be okay if a Supreme Court Justice was the lead adviser to a President and authored memos on how to take political gain? How about if they were the chief of staff involved in a political election?
My point is that her function had absolutely zero to do with being a lawyer (or maybe 10%) and 100% (or perhaps 90%) on with working to advance the political policy of the President, with full force, and with her full heart.
These are not legal briefs! Characterizing her role as a Karl Rove-like one I think is apt. It’s a mild characterization, but she was working as the right arm of Bruce Reed (who is head of the DLC), somewhere among the ranks of top 5 political advisers. That is clear from the documents released on June 4. So how can she be expected to rule against policy when she worked to implement similar policy? Will Kagan be required to recuse herself on issues of abortion, gun-control, racial profiling, immigration; issues she actively worked on advancing policy under Clinton?
Clarence Thomas came under fire because his wife started a tea-party group. With someone like Roberts, at least he had a judicial track record (and he was filibustered from getting his circuit count appointment).
How come we can’t have an honest debate over this? Is it because the media is covering up or obfuscuting her role (based on ghostwritten articles for them from the Obama administration?).
June 12, 2010, 3:07 pmDavid Bernstein says:
I don’t know that I have a firm rule for what’s “legitimate.” Personally, I wouldn’t sign an op-ed someone wrote for me to push his agenda, even if I edited it, though I suppose I might take a draft and rewrite it if I agreed with the point; the line between editing and rewriting is admittedly not 100% clear.
I used to occasionally sign on to amicus briefs I didn’t write, but I haven’t for quite a while, and I’ve turned down quite a few requests. If I were to sign on to one, it would be in an area of law that I’m sufficiently familiar with (e.g., the admissibility of expert testimony) that I could have written the brief myself, and I agree with it.
I can’t imagine circumstances in which I’d even agree to write my own piece at the behest of a government official, because I think academics should go out of their way to be independent from the government, though reading through some of the Kagan memos, it’s clear that this is not exactly a universally held opinion.
June 12, 2010, 3:16 pmORID says:
I don’t have the direct link to it handy but one of the things Kagan wrote from that time was regarding the Daschle amendment. Her memo was something like this
“If we advance the D amendment it will help him get re-elected, otherwise there could be a landslide to Santorum…” [I'm guessing it was referring to HR legislation being pushed by Santorum on abortion].
Yet the media-meme went something like “She pushed for the Daschle amendment because she’s a pragmatist.” Certainly if you simply look at one of the other memo’s where she recommends going Dashcle in a vacuum that’s what it looks like. But with the other hand-written note in hand it looks like she pushed it for political purposes and political gain, having nothing to do with pragmatism.
I have no idea how she’ll rule on the bench, but I think I’d like to see some evidence that she’ll not be biased prior to putting her on the Supreme Court.
When you say “her job required her to be partisan”… its like saying Karl Rove is a neo-con because that’s his job, not because he believes through and through that its the right policy. Clearly someone who works that close to the President believes through-and-through at the policies.
The only think missing to complete the Miers’ comparison is Kagan’s time at the SG (and certainly if Bush had known that would help maybe Miers’ could’ve gone there for a year as well). Certainly Kagan is an intellectual powerhouse; I don’t oppose her nominations on those grounds. I oppose her nomination because she had her fingerprints all over the Clinton/Democrat agenda while at the White House. Could she rule against that agenda? Certainly, but we don’t need to put her on the Supreme Court for 30 years to really find out if she will or not.
June 12, 2010, 3:19 pmAndrew MacKie-Mason says:
To ORID:
“My point is that her function had absolutely zero to do with being a lawyer (or maybe 10%) and 100% (or perhaps 90%) on with working to advance the political policy of the President, with full force, and with her full heart.”
Exactly, it has nothing to do with her job as a lawyer, and it will, presumably, have nothing to do with her job as a judge. Do you have any examples of times when she was inappropriately partisan while in a role that is supposed to be nonpartisan? Because otherwise it’s basically irrelevant.
“So how can she be expected to rule against policy when she worked to implement similar policy? Will Kagan be required to recuse herself on issues of abortion, gun-control, racial profiling, immigration; issues she actively worked on advancing policy under Clinton?”
Can I take it from this that you’re opposed to any nominee who’s ever worked on the legislative or executive end of policymaking? And, thus, you’re opposed to a very large number of previous Supreme Court Justices?
Perhaps you’ll have trouble understanding this, but an important higher thinking skill is the ability to come at a problem or issue from different perspectives and reach different results. As a lawyer in the executive branch, Kagan had one perspectives. As someone who influenced policy, she had another perspective. And as a Supreme Court Justice, she’ll have yet another.
By saying that she’ll be unable to keep those roles distinct, you’re accusing her of basic intellectual incompetence, without anything to back it up. Yes, she has expressed policy preferences in the past. So what? Do you have any evidence, beyond your own say so, that those policy preferences will impact her judging?
“How come we can’t have an honest debate over this? Is it because the media is covering up or obfuscuting her role (based on ghostwritten articles for them from the Obama administration?).”
Hooray for unfounded anti-media, anti-Obama accusations!!!
Honest, aren’t we having an honest debate? I believe we are. Don’t blame your own inability to talk about an issue intelligently on the media.
““If we advance the D amendment it will help him get re-elected, otherwise there could be a landslide to Santorum…” [I’m guessing it was referring to HR legislation being pushed by Santorum on abortion].”
Sounds like she was asked to comment on the political ramifications of supporting a piece of legislation, and performed that task. Without an actual link, though, I can’t say for sure. Is that incorrect?
“I have no idea how she’ll rule on the bench, but I think I’d like to see some evidence that she’ll not be biased prior to putting her on the Supreme Court.”
How about looking at positions she’s held where she’s expected to be nonpartisan? As an Associate White House Counsel, did she do anything other than give the President honest legal advice? At Harvard, did suppress conservative faculty members or give special treatment to liberal ones? (For what it’s worth, Wikipedia says: “She also broke a logjam on conservative hires by bringing in such scholars as Jack Goldsmith, who had been serving in the Bush administration.”)
You’re creating a standard that no intelligent nominee would pass. It would, in fact, take someone who had been completely uninvolved in politics (and perhaps even in the law) to pass muster under your requirements.
You want to find evidence that she’s ever improperly partisan? Look at the positions she’s had where she’s expected to be nonpartisan. Of course, the burden of finding examples rests with you, since it’s practically impossible to prove the negative (that she was never biased.)
June 12, 2010, 3:39 pmAndrew MacKie-Mason says:
Professor Bernstein,
The way you characterize what happened continues to demonstrate a bias and that you’re not approaching this with honest intellectual openness.
“I don’t know that I have a firm rule for what’s “legitimate.” Personally, I wouldn’t sign an op-ed someone wrote for me to push his agenda, even if I edited it, though I suppose I might take a draft and rewrite it if I agreed with the point; the line between editing and rewriting is admittedly not 100% clear.”
You’ve chosen to call it “pushing [the writer's] agenda,” when there is no evidence to support the claim that that is what happened.
What seems more likely is that the administration found a professor (or professors) who agreed with their stance, and then discussed the issue with them. As a courtesy to the professors, someone within the administration was asked to write a piece that fit what the professor thought about the issue, which also fit with the administration’s view. The professor then reviewed the piece, perhaps made or requested some changes, and then signed off on it.
The professor, then is not signing an op-ed that pushes someone else’s agenda. They are signing an op-ed that reflects their legitimate, personal belief and that also happens to concur with the other person’s agenda.
In talking about amicus briefs, you said:
“If I were to sign on to one, it would be in an area of law that I’m sufficiently familiar with (e.g., the admissibility of expert testimony) that I could have written the brief myself, and I agree with it.”
Do you have any reason to suspect that that’s any different from what happened? Do you have any reason to think that the people who signed the op-eds weren’t sufficiently familiar with the subject, that they couldn’t have written it themselves, and that they don’t agree with what was written?
Of course, it’s possible that the administration found a puppet professor they could use to express views that the professor had no knowledge of and didn’t even really agree with, but did anyways because he or she liked the President. It’s possible. But to ask “Hmm, I wonder if this happened…” with no evidence that it did is very similar to Glenn Beck’s signature move of making unfounded accusations under the guise of “asking questions”, a fundamentally dishonest tactic.
“I can’t imagine circumstances in which I’d even agree to write my own piece at the behest of a government official, because I think academics should go out of their way to be independent from the government.”
Why do you think it’s more important for academics to go out of their way to be independent from the government than to be independent from other organizations that have policy agendas, like the Federalist Society or the Cato Institute?
It’s a significant understatement to say that this view of yours is uncommon. It’s downright rare. Many academics participate in government in various positions: to put theories into practice, to learn more in a different environment than the academy, and to give back to society in tangible ways. It’s very common: I’m in fact related to people who have done so.
Academics should be intellectually honest, but that’s clearly a far different question than involvement in government.
June 12, 2010, 3:53 pmhovercraft says:
“I think academics should go out of their way to be independent from the government”
Should they also go out of their way to be independent from corporations?
Lets suppose there is a large corporation that funds various positions at different law schools. Should a zealously independent academic go out of his way to avoid accepting appointment to such a position?
June 12, 2010, 4:23 pmzuch says:
Not even a college graduate, much less a lawyer?!?!?
Cheers,
June 12, 2010, 4:33 pmzuch says:
Did anyone demand all his work product from that time, along with months to go picking over the bones for embarrassing little snippets? Just curious….
Cheers,
June 12, 2010, 4:36 pmzuch says:
Not at all. People like Kagan parrot the administration’s position. People like Yoo and Bybee, OTOH, support the administration’s position. This is obvious. There is a difference….
Cheers,
June 12, 2010, 4:38 pmJonathan H. Adler says:
Most major newspapers will not knowingly publish an article signed by one person that was written by someone else with an interest in the underlying controversy. It’s one thing for a prominent figure to have a staffer or associate ghostwrite something. Among other things, the staffer or associate is likely to have drafted the document at and in accordance with the principal’s direction. It’s quite different to sign one’s name to a document/article/etc that was written by an interested party, e.g. a corporation with money at stake or a political administration seeking to defend its position. (This is also why the “partners sign things written by associates” argument is non-responsive.)
Like David, I’ve been approached quite a few times to sign my name to things written by others, and my response is always the same: If they have information they believe would interest me, I’d be happy to see the info and learn why they believe it is significant, and if I have the time and interest, I may write about it myself. But I am not going to sign my name to a document written by a PR flak or government official and pretend it is my own.
JHA
June 12, 2010, 5:17 pmJonathan H. Adler says:
Yes. Roberts’ WH memos were discussed extensively during his confirmation hearings.
June 12, 2010, 5:23 pmoverall says:
“It’s one thing for a prominent figure to have a staffer or associate ghostwrite something. Among other things, the staffer or associate is likely to have drafted the document at and in accordance with the principal’s direction. It’s quite different to sign one’s name to a document/article/etc that was written by an interested party, e.g. a corporation with money at stake or a political administration seeking to defend its position.”
This is both naive and arrogant.
If, in fact, Kagan did ghostwrite op-ed for others to sign, do you not think that she would have made certain that what she submitted to the principal comported with the principal’s views?
And, given the fact that Kagan was, and is, one of the most accomplished legal minds in America, do you imagine that you could frame and argument any better than her?
June 12, 2010, 5:26 pmSC says:
ORID, We’ve had a former President as a Supreme Court Justice. Your analysis is vapid.
June 12, 2010, 5:53 pmjiffy says:
“I think academics should go out of their way to be independent of the government. ”
Aren’t you a government employee?
June 12, 2010, 6:05 pmORID says:
Andrew Mackie-Mason,
Really, there has been a prominent legislature member elected to the Supreme Court, recently? Someone on the national level of John McCain, or Ted Kennedy? With Roberts and other nominees, there is sufficient paper trail to see what they were up to. I had no idea if Roberts, or Alito or any other nominee previous was actively working a political agenda while tat the White House.
No matter how brilliant of a legal scholar you are; if you were involved for 3-4 years in the White House working on domestic policy of a national level, such as racial issues, health care, gun control, etc. and things that will likely come up to the Supreme Court, not just providing legal advice, but setting and working a political agenda which is different.
I haven’t read through her legal counsel documents, but I hope they are solely legal advice and dealing with specific cases. However; its clear from her time in the DPC that she wasn’t authoring legal memos, she was working policy issues, working the media, ghost writing items for Clinton, etc. It looks like it was kind’ve a press-secretary / Presidential advisor type of role. We are talking about some (for Clinton) Bruce Reed, Rahm Emmanuel type of role. For Obama it would be like David Axelrod type of role. For Bush it would be some Karl Rove type of role. Not just carrying out policy, but thinking about how policy will work to defeat Republicans and support and re-elect Democrats. How can this not raise serious questions about how one may rule on the Supreme Court?
If Obama wants Kagan as a judge, he should nominate her for an Appeals court where she can show she is not biased and gain some tangible legal experience. Shouldn’t someone question also, what one of the “pre-eminent” legal minds was doing working on domestic policy issues instead of using her legal mind like a sharp-razor like sword?
I’m sorry for being so adamant about this, but I’m convinced there is some PR being bandied about to mis-characterize her role as a lawyer. Sure, she is trained as a lawyer, sure she practiced as one; but for brief moments while at the DPC. I see someone coordinating domestic policy (shock!) instead of providing legal advice to those coordinating domestic policy.
If people, such as legal scholars and the like can’t understand why this may cause concern and question from the citizen (see Miguel Estrada or others who have said something like “if Kagan can’t get on the Court, no one can”), they need to explain to the citizenry why such experience is simply explainable. Certainly it is different than clerking for a judge or working in an Executive level department where your role is clear and you won’t have broad reach or influence on many issues. Or as a White House lawyer where you aren’t supposed to be thinking about how your job will help make one party look bad over the other.
June 12, 2010, 6:15 pmORID says:
My analysis is vapid because I’ve taken the time to sift through 2000+ pages of Kagan’s related work at the Domestic Policy Council and concluded that I’m concerned about her political activity while in the White House (as opposed to clearly “job related” function where it could obviously be seen as “working for her boss”).
Things like, “Directed by the White House to do XYZ” versus something like “We should to XYZ because it can help the re-election campaign; we should also do ABC, EFG, blahblahblah, these will ensure our policy goals are being met, these will help Democrats get elected”. Certainly that type of thinking was part of her job, but someone doesn’t take close advisory roles to the President unless they agree with the policy. Kagan’s background screams “Clinton Insider”, and the DPC documents show it’s not some false notion .
Put her on an appeals court for 3+ years and then nominate her down the line. That would certainly ease my concerns (and we won’t need this debate because the focus will be on her judicial work!).
But, I guess it’s not really worth having the discussion because its a blemish on someone who otherwise seems to have all the legal and professional qualifications. Certainly I also agree its possible she’ll drop any bias she has. I’d rather have someone like Garland or Wood who served in less political and more limited role of the Executive Branch. How can people argue that the DPC isn’t more inherently and explicitly political after the trove of her documents released from the Clinton Library? She would be the first DPC official to garner nomination to the Court.
For instance, page 189 of Box 41. There is a highlight on this:
“What is demanded is strong political and media operation. The matter should immediately be ceded to the DPC and to the political shop to begin to organize”.
Who spearheaded political and media operations? People like Kagan.
Go to page 520, and it talks about “Make ‘Em Pay”, which Kagan highlights as something that could be used. A Civil Remedy that will seize property if used in a hate crime, like a “prized hot rod” (it’s on page 523, but her memo is on page 520).
So what should someone expect the outcome to be if they came with a case saying “Make ‘Em Pay” is a Constitutional violation because of the subjectivity of definition of a “hate crime”, the fact that it is done by HUD, and the fact that a whether a person lives in HUD housing or not is irrelevant to the criminal statute. Could she be forced to not take part in the case due to her enthusiasm for such a scheme, or something similar?
June 12, 2010, 7:01 pmDavid Bernstein says:
First, I don’t know if any professors actually had ghostwriting done, the article is ambiguous on that, and I haven’t seen the sources. Second, a professor can write a decent op-ed in a few hours, and can rewrite someone else’s piece in less time. The only reason to have a ghostwriter is to make sure that what’s said is exactly what the real author wants to be said. Third, if you’re a professor angling for a judgeship or a high level position in the administration, are you going to turn down the WH counsel when she asks you to sign the piece, even if you’re not in full agreement? I’m sure some folks would, and some wouldn’t. Which is why it’s good to have an a priori rule not even to consider it.
I am, but the State of Virginia has exactly no say in what I write about, and what position I take with regard to what I write about. If the chief of staff of the governor was ghostwriting my blog posts, or the governor somehow had expectations of me to support his policies, I think that would indeed be cause for concern.
Not necessarily; if that person wanted an “in” at the White House, and especially if it wasn’t an issue the principal (I’m not sure what makes the ghostwritee the “principal”) didn’t have very strong opinions about.
That’s fine. It’s one thing to temporarily be in, and have everyone know that you are writing as a government official promoting the government’s policy. It’s quite another thing to “author” something in your academic capacity, that was actually written by someone else, to serve the government’s agenda. Anyone, if there’s “nothing wrong with it,” how about a byline like “by Elena Kagan, White House Counsel–but Prof. __ of Harvard wants everyone to know that he agrees with it.”
June 12, 2010, 7:25 pmDavid Bernstein says:
Neither of those are very good examples; but the short answer to the general question is because the federal government wields substantially more power than any single institution in American society, and indeed, the world, and in fact has the resources to buy off every academic in the country, if they are willing to be bought.
June 12, 2010, 7:29 pmwhohorton says:
“the federal government wields substantially more power than any single institution in American society, and indeed, the world, and in fact has the resources to buy off every academic in the country, if they are willing to be bought.”
Academics are pretty cheap. Plenty of them are happy to accept money and endowments and appointments from corporations.
I suppose you think that such academics are not affected by the money?
Here’s a test. You hear someone described as follows:
“He’s an Olin Fellow” or “She’s a Foundation Professor” [which means that her academic position is funded by, say, the Koch Corporation]
When you hear that do you think “S/he’s probably a whore”?
June 12, 2010, 8:43 pmDavid M. Nieporent says:
That’s because “ghost writing” is a common English phrase, and does not need definition for native speakers of the language. (Hint: “suggesting wording for a sentence or two” does not constitute “ghost writing.”)
June 12, 2010, 9:29 pmDavid M. Nieporent says:
Yes. You trollingly asked this question before, and were answered.
June 12, 2010, 9:32 pmLaura(southernxyl) says:
“The professor then reviewed the piece, perhaps made or requested some changes, and then signed off on it.”
Signed off on, as in, “I endorse this piece”? Or signed off on, as in, “I wrote this piece”?
If a law student did this kind of “signing off”, could this be viewed as plagiarism? What would happen to the student, if caught?
June 12, 2010, 9:35 pmDavid M. Nieporent says:
No, that’s not what matters. There is indeed a representation that the document is the signer’s personal work product. We’re talking about an Op/Ed here, not a petition or one of those tedious “open letters” signed by 300 academics. An Op/Ed is a piece by a specific person, with a by-line by that person, to show that this specific authority or expert is making an argument. That’s the whole reason that the author/ghostwriter is trying to get that person to sign it, rather than signing it him/herself!
The issue isn’t whether the person agrees with it. The issue is whether the person wrote it.
June 12, 2010, 9:45 pmbyomtov says:
but the short answer to the general question is because the federal government wields substantially more power than any single institution in American society, and indeed, the world, and in fact has the resources to buy off every academic in the country, if they are willing to be bought.
True but so what? Lots of organizations and individuals have enough money to buy off an academic or a handful. If your views are bought and paid for what difference does it make who the buyer is?
June 12, 2010, 9:54 pmtwaddle says:
“If a law student did this kind of “signing off”, could this be viewed as plagiarism? What would happen to the student, if caught?”
“No, that’s not what matters. There is indeed a representation that the document is the signer’s personal work product.”
—————————-
Yes, because signing an Op-Ed is ___exactly___ like submitting original work for an individual grade.
June 12, 2010, 9:56 pmtwaddle says:
“That’s because “ghost writing” is a common English phrase, and does not need definition for native speakers of the language.”
—————-
I see, so you know precisely what the write meant by “ghostwriting”.
Is it
a) Writing a 500 word Op-Ed in which not a single word is changed?
b) Sending an outline of 5 different points to be made? And offering 2 or 3 examples for each.
Suppose the academic recieved the 500 word Op-Ed and changed 50 words. Is it still ghost written.
I mean, since you are a native speaker and all, this stuff should be easy for you to answer.
June 12, 2010, 10:00 pmMoneyrunner says:
Whohorton
Actually, only someone from academia whould think that.
By the way, do you think the Obama administration is incompetent or alien? Incompetence seems to be the current line of defense.
June 12, 2010, 10:05 pmdblittlefriend says:
“By the way, do you think the Obama administration is incompetent or alien? Incompetence seems to be the current line of defense.”
I don’t know, but whichever one it is, I hope you enjoy sucking on it for the next 7 years.
June 12, 2010, 10:19 pmDavid Bernstein says:
It wouldn’t take you very long, if you cared to find out, that my Foundation professorship is from the George Mason University Foundation, which has nothing to do with any private corporation, and is funded, as I recall, by the sale of university property in Arlington that now houses the FDIC. My second Olin Fellowship funded a year off, to write what I pleased, with no editorial control or even input from Olin. My first, in law school, came with no money at all. And even if I had a chair that a corporation had donated, no academic institution allows the donor to have any input into what the chairholder says, or how he says it, nor, for that matter, do donors typically have any say over who gets the chair.
June 12, 2010, 10:26 pmIt’s bad enough to write scurrilous nonsense, worse to do it anonymously.
David Bernstein says:
a) Writing a 500 word Op-Ed in which not a single word is changed?
YES
b) Sending an outline of 5 different points to be made? And offering 2 or 3 examples for each.
NO, unless the putative author takes the outline and examples and puts them verbatim into “his” article.
Suppose the academic recieved the 500 word Op-Ed and changed 50 words. Is it still ghost written?
YES, though if the changes go to the meat of the piece, and it’s just the basic background material that remains ghosted, this would not be objectionable, because the author is presenting his own views in his own words. If it’s just stylistic editing, that’s another story.
June 12, 2010, 10:31 pmScott says:
I think Steve was talking about affidavits and why the comparison to ghostwriting was off. There is no claim about work product in signing an affidavit.
June 12, 2010, 11:23 pmScott says:
Sorry, David. He was talking about op-eds, which obviously are a claim to work product but comparing them to affidavits, which are not.
June 12, 2010, 11:30 pmRich Rostrom says:
Personally I do feel it reflects on Kagan. If it was dishonest for the various academics or former officials to put their names on ghost-written op-eds, then Kagan was suborning that dishonesty.
And I do think it was dishonest. These people had reputations as scholars or lawyers. When they published those op-eds, they attached their reputations to the statements and arguments in the op-eds. They did so with the implicit assurance that they had formulated those arguments for themselves. That carries a much stronger implication of belief than mere endorsement of another’s words.
It’s not a certain guarantee – a man may lie for another in his own words – but it carries weight. That’s why Kagan did this.
There is also an implication that the nominal writer holds those beliefs strongly enough to motivate him to compose the op-ed – another expectation which is defrauded. This especially true since the potential for improper influence on the nominal writer is so great.
One might argue that a target might be pressured to compose an original op-ed; but the target could decline or delay. When the target is presented with a pre-fab product, and no effort is required, the pressure is a lot easier to apply.
The practice is outstandingly sleazy, and Kagan’s involvement is nasty.
June 13, 2010, 12:38 amDr.Geisel says:
“The practice is outstandingly sleazy, and Kagan’s involvement is nasty.”
I am shocked, shocked to discover gambling going on in this establishment!!
June 13, 2010, 2:50 amLaura(southernxyl) says:
Twaddle (appropriate name for you) – why is plagiarism bad when a student engages in it? Why do we tell them not to do it? Because it’s wrong to pretend you did work you didn’t do? Or because giving a student an “A” is exactly like paying him $1000? (Let’s not pretend that there could be no benefit to prominent people, to have more and more opinion pieces published under their byline; especially if they didn’t have to fool with actually writing the things.)
Your attitude reminds me of corporations who have very nice safety and quality programs, written up in beautiful documents that sit on a shelf gathering dust. (And then the rig blows up, and it’s “what happened?”.) Or the kid who whines about his poor writing being graded down in history class, because it’s not English comp. There’s a reason for these things beyond just going through the motions.
I think signing your name to a ghostwritten piece is worse than being the ghostwriter. But if Kagan did allow her work to be used in this way, I think less highly of her because of it.
June 13, 2010, 9:29 amORID says:
I think it is clear Kagan’s role in the White House was more of a media/PR type of role. She was influencing public opinion in a political manner. To argue otherwise is to ignore the reason she kept so many media clippings. Why would she keep clipping on how people like Gingrich or D’amato, on issues like Whitewater and abortion. She was hand-in-hand with the White House “political shop”.
Involvement in this type of political activity is one that we try to keep the independent Judiciary away from. It strikes me as no different than a judge actively writing and delivering stump speeches for a candidate.
June 13, 2010, 10:03 amstandard says:
“I think academics should go out of their way to be independent from the government”
What about academics like Orin Kerr who troop off to write questions for Senators to ask judicial nominees.
Is his integrity and independence compromised?
June 13, 2010, 12:26 pmwhisper says:
“Involvement in this type of political activity is one that we try to keep the independent Judiciary away from.”
You know she wasn’t a judge then, right?
Or are you arguing that Supreme Court nominees should be disqualified if they have engaged in political activities at any point in their lives?
June 13, 2010, 12:30 pmDavid Bernstein says:
I already answered this question:
If Senate aides were ghostwriting Orin’s blog posts on the Fourth Amendment when he was employed by G.W. and not the Senate, that would be problematic. But would I prefer if there were less of a revolving door between government and academia? Yes. Kagan, for example, pretty clearly avoided saying anything controversial as an academic to preserve her political viability.
June 13, 2010, 1:31 pmSammy Finkelman says:
If Steve Cohen (D-Tenn) never tried to join, it would only be because he knew they wouldn’t let him.
June 13, 2010, 1:37 pmSammy Finkelman says:
What would you expect from someone who worked for Bill Clinton?
If all she did was ghostwrite articles – on a strictly legal issue – that would be pretty good.
Do you think working for Bill Clinton means absolutely nothing???
There’s more, but the Clinton library held back quite a bit.
June 13, 2010, 1:40 pmORID says:
whisper,
I want to say the question is “what level of political activity is acceptable?”. Certainly when they are judges; are there formal rules for the political activity of judges? I was trying to look at what was released for Roberts and Alito to see what type of political activity they were engaged in, and I have to admit it looks like at least there was some; however their functions were strictly defined.
A future judge working on a political campaign when they are very young is different than someone actively giving stump speeches endorsing a candidate. I even think giving stump speeches may be too much. What do we make of something like the Hatch Act? Although the Hatch Act doesn’t stop political activity by career employees prior to them joining the Federal Government.
Is Kagan’s time at the White House the most political activity we’ve seen from a Supreme Court justice since… O’Connor? But Justice O’Connor had state court experience to at least read. I think its fair to say, for recent history Kagan’s experience is the most unique. I think my position after ruminating is that I’d rather see her appointed to a federal appeals court (like her nomination in 1999), and she can have further record on her judicial rulings. She’s only 50; why not get her on an appeals vacancy? I don’t think I would be opposing her nomination as much.
June 13, 2010, 6:26 pm