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One More Kagan Point


To follow up on one point raised by Paul, I was genuinely puzzled by this post by Ilya Somin. This isn’t because I disagree with his argument that being an outstanding dean doesn’t require one to be an outstanding scholar. Rather, my puzzlement comes from the opposite direction: I would have thought that it’s obvious to the point of banality that being a successful scholar generally provides little evidence that one can be a successful administrator, and vice versa. And while I’m reluctant to address this on Paul’s behalf, I think — and he can correct me! — that it’s flatly erroneous to claim that it’s Paul’s “implicit assumption that being an outstanding dean requires you to be an outstanding scholar.” This turns the case against Kagan on its head. In its most extreme form, the argument against Kagan would run more along these lines. I do think Jotman goes too far, in that assuming that deans aren’t serious scholars is (to put it mildly) a very dangerous one that is likely to be fallacious in many cases. One only has to look at Harvard Law (where Kagan was replaced by Martha Minnow) and Yale Law (where Harold Koh was replaced by Robert Post) — all first-rate scholars; indeed, I would be very happy to see any of the three get a Supreme Court nomination. I’m also disinclined to second-guess the tenure process at Chicago; even elite law schools — hell, perhaps even especially elite law schools — need outstanding teachers.

But none of these caveats add up to much of a justification for nominating Kagan for the Supreme Court. The real issue, as Somin eventually acknowledges, is this:

Whether that record justifies an appointment to the Supreme Court (which requires skills somewhat different from either a dean or a scholar) is a different question.

Right — that’s the issue. While I wouldn’t say that administrative ability is entirely irrelevant to the work of a Supreme Court justice, especially for an associate justice it’s a credential of very marginal importance. If we were dealing with a Koh or Minnow or Post or Sullivan — where a prospective nominee had demonstrated administrative ability on top of a record of outstanding scholarship — it might be considered a small additional point in their favor. But in evaluating a Supreme Court nominee, I think it’s obvious that scholarship is vastly more important than administrative ability, both because it’s more relevant to the position and because without scholarship or a judicial record it’s impossible to evaluate a nominee’s constitutional vision.

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  • Paul Campos

    Exactly. A couple of further points: Somin doesn’t really address one of the more disturbing aspects of the Kagan situation, which is that her file at the time she obtained tenure at Chicago was frankly nothing less than bizarre for anybody who knows anything about the process at that school (as I’m sure Somin does). Kagan had written almost nothing, and what she had written wasn’t impressive (maybe he or somebody else disagrees on the latter point, but the silence from legal academia in regard to it has been deafening).

    Also, I think it’s significant that as far as I’ve been able to determine Kagan has literally never published a word outside of her very scanty list of academic writings. She’s never written anything for a general audience — nothing for the popular press, no op-eds, no blog posts, etc. Again I have nothing against nominating an academic who has never been a judge to the SCOTUS, but an academic who also hasn’t really been an academic is a bit much.

  • Mudge

    A successful academic has to have an inclination to write along with the cleverness to say things that are publishable. If Kagan shows neither, as Campos infers, then she has all the intellectual potential of Clarence Thomas, who neither writes much nor says much of import. All intellectual cred on the court will flow to Scalia, no matter how misplaced that may be.

    Even if Kagan has liberal tendencies, it would seem her ability to be a pursuasive advocate (which would be indicated by her will to publish and her creativity in argument) is minimal.

  • Incontinentia Buttocks

    As a number of people have pointed out here and elsewhere, the case for Elana Kagan really boils down to: look at her friends, Barack Obama, Lawrence Lessig, etc.! You trust them, don’t you?

    The Harriet Miers nomination showed that even the Bush cult of personality had its limits.

    As Glenn Greewald has suggested, it will be sad if progressives’ response to an Elana Kagan nomination reveals that the Obama cult of personality is deeper and more intractable.

  • IM

    Hey, have you seen the latest of Peretz at TNR? He attacks his own magazine for publishing Campos and calls him a nobody.
    Reads almost drunken writing.

  • publius

    Who cares about the rest. The most important practical question is– Will she defend the second amendment?

    • Merrel Moore

      If Ms. Kagen does not answer the 2nd Amendment question affirmatively, she should be disqualified.
      The Heller decision clearly affirms an individuals right … was her previous response. If she changes or crawfishes, she should be out. Does she or does she not “preserve, protect and defend” the Constitution? She’s a highly educated individual with a broad based background. She completely lacks judicial experience. She’s a very weak choice overall.

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