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SCOTUS Absurd

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The controversy, such as it is, over Elena Kagan’s nomination throws several points into relief:

(1) The extent to which legal academia is an intellectually bankrupt and politically corrupt insider game. Once Kagan was nominated it became inevitable that a bunch of people would argue that she’s an excellent scholar because, if nothing else, it would be institutionally embarrassing to the Harvard Law School if she wasn’t. Kagan’s academic career is a typical one for a driven, politically ambitious young lawyer who intellectually speaking doesn’t have much to say. She’s written a few boring hyper-technical pieces that take no chances in either intellectual or political terms. She’s published them exclusively in her home reviews, which means that the students at the school at which she teaches (and no doubt to some extent students from her own classes) are the people selecting her work for publication, except in two cases when her work was published in a journal edited by the faculty members at what was either her current or her former home institution. Because one of these pieces is an 150-page article in the Harvard Law Review, and its author became dean of the Harvard Law School shortly afterward, it’s then cited 300 times. This fact is then cited as evidence for the supposed significance of her work, which further “fact” is cited in support of the claim that she’s one of the, in the words of Barack Obama’s press release, “best legal minds of her generation.”

(2) Because she’s one of the best legal minds of her generation, see, e.g., (1) supra, the claim is made that the fact that Kagan has no public views on almost any question relevant to being a Supreme Court justice is not in any way disqualifying to her candidacy. This claim is based on the notion that what’s most relevant to being a good pick for the SCOTUS is a high degree of technical competence in the mysterious science of legal interpretation. That hypothetical competence then becomes what people mean when they talk about whether a candidate is “qualified.”

(3) The argument in (2) makes sense only to the extent that it’s plausible to argue that legal interpretation, when it takes place at the level of the SCOTUS, isn’t a thoroughly political, as opposed to a formally technical, activity. That is deeply implausible, but the social and intellectual conditions of the American law school obscure this.

(4) Despite the social and intellectual conditions that enable (1), (2), and (3), there’s nevertheless something of a consensus emerging that the current structure of the SCOTUS, which puts a premium on giving life tenure to relatively young lawyers with relatively little of a “paper trail” (aka evidence of their legal/political views) on an enormously powerful political institution doesn’t make any sense.

Update: I just did an NPR segment with conservative law professor Stephen Bainbridge, who supports Kagan’s nomination for exactly the same reason I oppose it: because in both of our estimations she’s a best-case scenario for the GOP, in that there’s a significant chance she’ll move the court to the right. Bainbridge opposed Harriet Miers for precisely the same reasons in reverse. Of course the fact that a lot of conservative commentators are taking a similar line proves nothing in itself, but it’s awfully suggestive.

As IB points out in comments, the White House has announced Kagan has had a conversion experience regarding whether SCOTUS nominees should be expected to answer tough questions. It’s heartening, I suppose, that the members of the media treated to this revelation literally burst into laughter.

Several people have referenced Eugene Volokh’s defense of Kagan’s writing. Leaving aside for the moment the question of its quality, one issue that’s not, I think, in dispute, is that it doesn’t actually answer precisely those questions a person would want answered under these circumstances — that is, normative questions about her view of the law, rather than issues of descriptive categorization. Consider the Private Speech, Public Purposes article Volokh likes so much. Volokh emphasizes that it’s in his view a sophisticated analysis of the relevant legal doctrines. But Kagan quite self-consciously avoids any critical evaluation of those doctrines. For example, the thesis of the article is that the Supreme Court’s First Amendment doctrine “constitutes a complex scheme for ascertaining the governmental purposes underlying the regulation of speech.” Of course the questions a reader wants answered when considering Kagan’s potential elevation to the court is whether Kagan believes this scheme correctly interprets the First Amendment, and whether — to the extent Kagan believes this is even a different question – it’s a good method for regulating speech. Kagan flatly refuses to address these issues: “I have never proposed to show,” she notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does . . . I leave for another day the question of whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.” (That day is apparently not yet here).

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