Archive | Kagan Nomination

“What Kagan Will Bring to the Court”

The New York Times‘ Room for Debate blog has items from Alan Dershowitz, Dick Thornburgh, Jamal Greene, Kathleen Sullivan, Robert Reich, Ed Whelan, and me. Here’s my modest contribution:

If Elena Kagan is confirmed, Justice John Paul Stevens’ seat will remain in pretty solidly liberal hands for the next 40 years, if Ms. Kagan remains on the court as long as Justice Stevens has. Naturally, there’ll be some differences between her votes and his; for instance, she might be more open to claims of presidential power than Justice Stevens was.

But on balance, it seems likely that a Justice Kagan would be quite similar to the Justice Stevens of the late 1990s and 2000s: A very smart, articulate and liberal justice who is probably not as far left as a William Brennan, Thurgood Marshall or William Douglas but who is not a centrist, either.

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Elena Kagan as Scholar

As scholar, Elena Kagan worked in two main fields, First Amendment law and (more or less) administrative law. Since the first of those fields is one in which I also work, I decided to reread those articles, and — since some people have raised questions about Kagan’s qualities as a scholar — look more broadly at her scholarship.

1. Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991-95, and then 1999-2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).

Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right [...]

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Isn’t This a Bit Much?

The president went to Harvard, and barely defeated a primary opponent who went to Yale. His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively. The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

I know that Harvard and Yale attract a disproportionate percentage of America’s talented youth, but still, isn’t this a bit much? Are there no similarly talented individuals who attended other Ivy League schools, other private universities or (gasp!) even state law schools? [...]

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Kagan’s Scholarship

At Balkinization, Marvin Ammori and Mark Tushnet review some of Elena Kagan’s scholarship (and seem more impressed than Paul Campos and Paul Mirengoff). Ammori explores some of her First Amendment scholarship and wonders whether she is sympathetic to “corporate speech rights,” such as those embraced by the Supreme Court in Citizens United.  Brian Leiter also comments here.

Tushnet is particularly impressed by her article “Presidential Administration,” 114 Harvard Law Review 2245 (2001); “this is an incredibly smart and insightful piece of work.”  I agree with Tushnet.  The piece foreshadowed the rise of White House “czars” and other methods of ensuring greater Presidential control of the executive branch.  Combined with “Chevron’s Nondelegation Doctrine,” 2001 Supreme Court Review 201 (2001) (co-authored with David Barron), it reveals that Kagan is a strong supporter of Presidential authority over executive agencies.

I am particularly struck — though definitely not convinced — by her and Barron’s effort in the latter article to reformulate Mead‘s approach to Chevron deference to grant more authority and autonomy to high-level political appointees.  Specifically, they argue that Chevron deference should turn on the nature of the decisionmaker, not the process through which the decision was made.  In other words, if a statutory interpretation is made by a low-level career official in the conduct of his or her duties (e.g. a tariff classification ruling), no deference is due.  But if it is made by a high-level political appointee to which Congress has delegated decision-making authority under the relevant statute, this fact is more important than whether the agency used notice-and-comment rulemaking or some other more formalized decision-making process.  It’s an interesting argument — and one that shares some commonalities with Justice Scalia’s approach to Chevron deference questions — but also one that is in tension with [...]

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The Road to the Supreme Court Runs Through a Stalled Senate Confirmation:

Obviously I’m exaggerating.  But it does seem peculiar that Kagan, like John Roberts, was nominated by a prior President but never voted on in the Senate.

Is it possible that this is more than a coincidence?  Probably not.  But here’s a theory for perhaps why being a nominated but stalled nominee for the circuit court might actually help you later get nominated to the Supreme Court.

First, there are many, many people qualified for the Supreme Court.  My impression is that the nomination and confirmation process is essentially one that eliminates people off this long list of potentially plausible nominees.  Thus, to a large extent you get ruled out rather than earning your way on to the list.  This is somewhat of a game of “gotcha” where opponents of the nominee (including those within the White House who lobby for and against various candidates before they are even nominated) look to anything that they can find to trip you up.  This tends to favor stealth candidates with minimal paper records.  Circuit judges who may have had to decide difficult cases thus have a longer paper record that provides potential landmines.  Failed nominees have a bit of an imprimatur of having been nominated with the assumption that they would have been confirmed, but without the paper trail to shoot at.

Second, given that judges are a political base issue, there is cachet in having had one’s nomination held up by the “bad guys” on the other side.  That Roberts and Kagan were held up makes them into a sort of martyr to the cause that partisans can rally behind.

And the wages of martyrdom may not be too bad–a lucrative law firm partnership for Roberts and the Deanship of Harvard Law School for Kagan.  Topped off by the Supreme Court.  Apparently [...]

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Preliminary Reflections on the Kagan Nomination

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 [...]

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Elena Kagan: “I LOVE the Federalist Society! I LOVE the Federalist Society!”

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about [...]

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Justice Kagan I Presume?

SCOTUSBlog’s Tom Goldstein says the pick is coming tomorrow, and David Lat has reasons to think it’s Kagan (as Politico reported Friday).  If Kagan is the pick, there will be no filibuster and she will be confirmed — perhaps even with 65 votes as Goldstein predicts — but there could be some bumps on the ride.

UPDATE: NBC is confirming. [...]

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Someone Like Me

In my experience, when someone makes an argument that a President should select a Supreme Court nominee with a particular experience or worldview, there is a very highly likelihood that the person making the recommendation has that exact experience or worldview.  Yesterday’s New York Times op-ed page makes the point nicely.  (It’s not true for every contribution, but it’s true for a lot of them.) [...]

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