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Elena Kagan, Barack Obama, and the American Establishment

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This article addresses what should be a puzzling question: Why did Barack Obama nominate Elena Kagan to the Supreme Court? Not only has Kagan never been a judge, but, far more problematically, she has over the course of a 25-year legal and political career taken almost no public positions on any significant legal or political questions. This latter fact would, at first glance, seem to disqualify her from consideration for a lifetime appointment to one of America’s most powerful political institutions. That it has not tells us a great deal about deep-seated cultural myths regarding the possibility of separating law from politics, and about the elite institutions that have molded Obama, Kagan, and so many other members of America’s contemporary legal, political, and economic establishment. Ultimately, in one sense Kagan remains, on the eve of her confirmation by the Senate, as much of a blank slate as ever. Yet in another we, like Barack Obama, can venture a good guess regarding what sort of Supreme Court justice she will make. That we can do so reflects both the cultural and ideological power wielded by the elite institutions that are producing the contemporary American establishment, and the relatively narrow range of political views those institutions generate among those who go on to become part of that establishment.

The Elena Kagan story, as presented by both the White House and her supporters throughout the legal world, is that of a brilliant academic and administrative career, whose trajectory has been ever-upward, until it has placed her on the doorstep of the Supreme Court a few months after her 50th birthday. This story is actually a serious oversimplification: Kagan has gotten to her present position despite a series of early career reversals, which culminated in the loss of her position on the University of Chicago faculty, and a brief period in which she was almost frantically scrambling for a job. Her rather abrupt transformation from a soon-to-be unemployed former law professor to dean of the Harvard Law School, and her subsequent ambiguous track record in that position, is a tale that reveals academic politics at their most byzantine. The real story, in other words, is more interesting than the narrative being put forth for public consumption. In some ways it makes Kagan a more attractive figure than the almost robotic paragon of flawless professional advancement concocted by the public relations machine. Over the last few weeks I’ve spoken to a number of former colleagues of Kagan’s in Chicago, Washington, and Cambridge. On the basis of those conversations, as well as the public record, the following story emerges.*

The first five years of Kagan’s legal career fit the White House’s narrative well: prestigious clerkships with a federal judge and a Supreme Court justice, followed by a brief stint at a top Washington law firm, before joining the Chicago law school faculty as an entry level tenure-track hire in 1991 (the same year that Barack Obama was hired as a non-tenure track lecturer). This is the precise early career track worn into a deep groove by hundreds of current legal academics and administrators. But once she got to Chicago, Kagan’s smooth upward ascent began to encounter significant turbulence. According to people involved in the process, Kagan’s tenure case was quite contentious. I was told that “more than a couple of people” were strongly opposed to her candidacy, and several other faculty members were ambivalent, mostly because Kagan had published so little by Chicago’s normal tenure standards: one article, a couple of short essays, and a book review. “In terms of quantity,” one former colleague of Kagan’s told me, “it was a thin file — probably the thinnest of any ultimately successful case in a long time.” Furthermore questions were raised about the quality of the work. There was skepticism about the placement of Kagan’s pieces: all of it was published in two journals produced by the law school itself (as a rule, it’s considered somewhat undesirable for non-tenured legal academics to publish in their home journals, since such placements invariably carry a suspicion of nepotism). A bigger problem was that the actual substance of what she had written was considered by some of the faculty to be, as one of them characterized it to me, “fairly pedestrian.”

One participant in the faculty discussion of Kagan’s case described it as “unusually heated.” “My sense,” this professor told me, “is that the argument for her came down to the claim that, while what she had done so far presented a less than compelling case, she was obviously extremely smart and driven, and she would either succeed here in the long run, or go somewhere else. Everyone was aware of her political connections [and] ambitions. Plus, she was considered an excellent teacher.”

Immediately after getting tenure in the spring of 1995, Kagan took a two-year leave to work in the Clinton administration for White House counsel Abner Mikva, for whom she had clerked after law school. As her formal leave was coming to an end another old friend, Clinton Director of Domestic Policy Bruce Reed, asked her to stay on as his deputy.

At this point Kagan faced a practical problem. It’s not unusual for law professors to cycle in and out of government jobs. (Last year the Obama administration hired a gaggle of legal academics, including Kagan herself). A common practice in such instances is for institutions to extend leaves beyond whatever period faculty members enjoy as a matter of contractual right – in Kagan’s case two years – so as to allow such people to remain in their government jobs while keeping their academic positions. According to someone familiar with the situation, Kagan inquired about getting an extension to her leave of absence, but the law school’s administration refused to grant one. As a result she resigned from the faculty to stay at the White House and work for Reed.

This was an odd decision, on both ends. First, Chicago’s refusal to accommodate Kagan is striking, especially given that, two years after the school granted Kagan tenure, her resume was now stronger than it had been at the time, primarily because she had published an article in the school’s law review in 1996, while working at the White House. (This article, Private Speech and Public Purposes, is along with her 2001 article Presidential Administration one of the two most cited pieces of evidence by defenders of the quality of Kagan’s scholarship). The fact that Kagan had published a significant piece of scholarship in the relatively brief interval when she was working in the White House was all the more notable, given how little she had done in her four years as a full time law professor. Why then did the law school turn down a request that in the context of legal academia is granted fairly routinely? On this point, interpretations differ.

According to one faculty member, the kind of work Kagan was doing for the Clinton administration was and is not especially valued by Chicago, and therefore the school’s refusal to extend her leave wasn’t surprising, and didn’t necessarily indicate anything about the law school’s attitude toward her in particular. “It’s not like she was the White House counsel,” he said. “I think the message was, if you’re serious about your academic career, stop carrying water for Abner Mikva and get back here.” Another faculty member sees the matter somewhat differently. “Let’s face it, if they were concerned about keeping her they would have extended the leave,” he told me. “I wouldn’t say they were trying to push her out, exactly, but I can see how she might have taken it that way. By that time I think there may have been a general sense here that her future was in politics, or maybe the judiciary.”

Kagan’s decision to stay at the White House was an uncharacteristically risky move on her part. On its face, she was giving up a very valuable asset – a tenured position at a top law school – for nothing more than a temporary job as a mid-level bureaucrat in the last term of the Clinton White House. In a career otherwise full of strongly risk-averse behavior, this choice suggests Kagan took the school’s refusal to extend her leave as a sign of at best indifference to her return, and at worst buyer’s remorse. In any case, whether or not Kagan’s decision was driven by serious pique toward her employer, she resigned from the Chicago faculty in the spring of 1997.

It seems she soon regretted that decision. Within a few months she had, according to someone who worked with her at the time, two full-time jobs: her new White House position under Reed, and coming up with a plan to escape it. “Everybody knew she wanted to be somewhere else,” this person told me. “Everyone respected her brains and her energy, but some people were struck by how focused she was on finding the next rung of her ladder. That’s a common thing in any administration, but in her case it was obvious almost from Day One.” Soon somewhere else turned out to be Hyde Park: a little more than a year after resigning from the faculty, Kagan was making inquiries about coming back.

In what was by now a well-established pattern in Kagan’s relationship with Chicago, the school was ambivalent. “She certainly had some strong supporters,” I was told. “Naturally, the people who had the most problems with her tenure case were opposed to taking her back.” Eventually, in the winter of 1999, Kagan’s overtures resulted in another round of heated arguments among the faculty. This time she lost.

What a few years earlier had looked like a brilliant career trajectory was now going in the wrong direction. Kagan had tossed away a plum academic job she had secured despite what some of her colleagues considered an inadequate record – and now that institutional ambivalence was coming back to haunt her. Furthermore she had so far failed to parley her four years in the Clinton White House into anything more than a temporary second-tier government job – and Clinton was going to be out of office soon.

At this point, in the spring of 1999, Kagan was pulling strings she had collected over the previous 20 years at Princeton, Harvard, Chicago, the White House, and the federal judiciary. Kagan had impressed a lot of people over the course of her career, and made many influential friends. Now, the combination of native ability, hard work, driving ambition, personal connections, and general social privilege people such as Kagan can draw upon in such situations paid spectacular dividends. In June 1999, Bill Clinton nominated her for a federal appellate judgeship – and not just any judgeship, but one on the District of Columbia circuit. (Among other things, this is the best possible job to have if you want to get on the Supreme Court: four of the current SCOTUS justices were D.C. circuit judges at the time they were named to the Court.). It was quite a coup for a young former law professor just a few months away from formal unemployment.

Yet Kagan’s apparent triumph over an Ivy League version of adversity evaporated almost as quickly as it had transpired: Senate judiciary committee chair Orrin Hatch refused to schedule hearings on the nomination, effectively killing it. But Kagan had a backup plan: Harvard Law School. Despite having just been unceremoniously rejected by her previous legal academic employer, Kagan secured what is known in the trade as a “look-see” visiting offer at Harvard – that is a visiting position, taken in anticipation of a subsequent offer of tenure.

Of all Kagan’s career acrobatics, this was the most impressive to date. Consider that, in legal academia, a lateral faculty position at a school is generally far more difficult to secure than an entry-level job at a similar school. At the entry level, candidates are by necessity evaluated largely on the basis of their potential: lateral job offers, by contrast, are based on actual performance. It’s also, on the whole, easier to secure tenure at the school that hired you in the first place, than it is to get tenure at a similar school as a lateral hire (because it’s much easier to choose not to hire a potential colleague than to, in effect, fire someone you’ve worked with for years). So, all things being equal, it should have been much more difficult for Kagan to get a lateral offer at Harvard in 1999 than it had been to get an entry-level job at Chicago eight years earlier. And all things were not equal, given that her performance at Chicago had resulted in something of a messy tenure fight, and an even messier departure. In addition, at the time she approached Harvard, she hadn’t published a word since the Private Speech article three years earlier. In short this was not, under normal circumstances, what would be considered a promising candidacy for a lateral position at one of the nation’s top two law schools.

But nothing about Kagan’s career has been normal. Kagan had a lot of friends in Cambridge, including heavyweight constitutional law professor Laurence Tribe, for whom she had been a research assistant the summer after her law school graduation. Most notably, she was also good friends with then-Secretary of the Treasury Lawrence Summers, whom she had worked with in the Clinton administration, and who had numerous connections throughout Harvard’s administrative structure. With her judicial nomination in what would prove to be permanent legislative limbo, Kagan accepted an offer to join the Harvard faculty as a visiting professor in the fall of 1999.

One significant obstacle still remained before this sudden spectacular rebooting of Kagan’s academic career would be complete: she needed to (once again) get tenure. Kagan hadn’t published very much at Chicago, and nothing at all since 1996, so some burnishing of her academic resume seemed imperative. At this point, Kagan made what in retrospect was a very canny move: she found a new academic specialty. Prior to coming to Harvard, her writing had focused exclusively on the speech clauses of the First Amendment; now she switched gears altogether, and in a space of less than two years re-made herself into an administrative law scholar.

From the standpoint of academic politics, this move made a great deal of strategic sense. The work Kagan had published when she was on the Chicago faculty suffered from a couple of obvious weaknesses: it was extremely narrow – essentially, she had written about nothing but Supreme Court interpretations of the constitutionality of content-based speech regulations – and it lacked anything like a critical component (it was difficult to tell from Kagan’s writing whether she agreed with the Court’s interpretations from either a strictly legal or more broadly political perspective). By publishing on administrative law, she would automatically ameliorate the first problem, and have an opportunity to address the second. Furthermore, writing about administrative law would give Kagan a chance to draw on her experiences while working for the Clinton administration.

Kagan went up for tenure at the start of her second year at Harvard, in the fall of 2000. At that point, she had two administrative law articles in preparation: a piece co-authored with David Barron, who had joined the Harvard faculty as an entry-level hire the year before, and a long article, “Presidential Administration,” which would appear eventually in the Harvard Law Review (this piece drew heavily on Kagan’s own White House work experiences, while arguing that President Clinton and his staff had made significant alterations to the traditional relationship between the White House and administrative agencies). Although not what could be called provocative, these articles at least contained some of the critical perspective that had been almost wholly absent from Kagan’s free speech publications. And they allowed her to present a tenure case featuring two areas of expertise.

Still, her tenure case was fraught with potential problems. Two additional articles (one co-authored) didn’t do that much to alleviate what had been an exceptionally light tenure file six years earlier. A bigger problem was that the articles weren’t yet published – and wouldn’t be until after the tenure file which the law faculty would vote on was complete. Most universities, including Harvard, put strict formal limits on the extent to which, if at all, publications that are “in press” — that is, in the editorial process but not yet published — can be considered in the context of a tenure evaluation. (This is because work that has not yet been published has not had a chance to be evaluated by the scholarly community in general. This is a particularly glaring problem in the context of legal academic publishing, where most scholarly articles never undergo any formal peer review prior to publication. The “Presidential Administration” piece, for example, was selected for publication by the Harvard law students who were editing the law review at the time).

Despite these issues, Kagan was awarded tenure in the spring of 2001. But this was only the beginning of the remarkably rapid rehabilitation of a career in legal academia that had been in limbo just two years earlier. At the same time Kagan was receiving tenure, her old Washington mentor Larry Summers was being named Harvard’s president. The importance of this for Kagan’s professional prospects became evident a year later, when Robert Clark announced he was stepping down as school’s dean, and Summers formed a search committee to find a successor. One law school faculty member described that search to me as “a sham.” This person described Summers as Kagan’s “godfather,” and opined that Kagan was Summers’ only choice all along. In any case, in the spring of 2003 Summers chose Kagan to be the school’s new dean.

Kagan’s six-year tenure in that position has received almost universally glowing reviews in the media. For instance, a New York Times profile claims that, when taking charge of Harvard’s faculty, Kagan inherited “a dysfunctional family stuck in the legal dark ages,” which she transformed by “building consensus” across different faculty groups. This supposed consensus was reflected by a remarkable amount of new faculty hiring, which, after taking into account retirements and other departures, expanded the size of the faculty by more than 25%.

My conversations with Harvard law school faculty members yielded a far more ambiguous portrait. “The same ten or twelve faculty members have given endless quotes about how wonderful she is,” one told me. “In fact a lot of people here think she was awful.” I found that faculty complaints about Kagan fell into several categories: her treatment of subordinates, her intolerance for disagreement, her financial decisions, and her management style.

Kagan, according to these critics, engaged in regular “verbal abuse” of staff people, including the liberal use of profanity. On one occasion, I was told, she kicked a door while berating a staff member. “She has a terrible attitude toward what she considers underlings,” one faculty member told me. Apparently Kagan fired at least five members of the school’s administrative staff (none were willing to comment on the matter). Kagan’s alleged poor treatment of subordinates was apparently extended to some faculty members. “A lot of the faculty have been yelled at,” I was told. Another professor told me that “a cloud of fear” descended on the faculty during Kagan’s tenure, and that she was “at heart a mean person.” According to her critics Kagan was markedly hostile to disagreement and robust debate — a trait which was most evident in her management style, which was described to me as “authoritarian.” One dissident claimed Kagan had bulldozed appointment offers through hiring committees hand-picked by her to be reliably pliant, then made extravagant financial deals with many of the prospective hires — deals which had left the school in “disastrous financial shape.” Specifically, according to this person, the school’s new building project is badly undercapitalized, to the point where the interim dean looked into the possibility of suspending it, and major cutbacks have been made in areas such as hiring visiting professors, in order to deal with the consequences of Kagan’s alleged impecunious management of the school’s finances.

“She’s very much like her mentor Larry Summers,” I was told. “She buys people, in every sense of the word.”

A common complaint about Kagan among the faculty members I spoke with was that she had been credited with ending the high level of faculty conflict at the school. “That is simply nonsense,” one senior professor told me. “The real story is the precise opposite of what is being portrayed in the media. Bob Clark (the previous dean) should have gotten all the praise now going to Kagan. The dysfunctional faculty that Kagan is supposed to have fixed is the one he actually inherited. He ended the faculty wars. In fact Kagan changed the faculty atmosphere for the worse, with her authoritarian style and failure to involve the faculty in decision making.”

Of course none of this should be taken as definitive proof that Kagan was a bad dean. Law faculties tend to be fractious places, and plenty of people at Harvard, not all of whom she hired, believe she did an excellent job. But it does demonstrate that portrayals of Kagan’s deanship as an unambiguous success are at best serious oversimplifications.

What, readers might ask, is the point of going into Kagan’s academic and administrative career in such detail? There are several reasons to do so. First, Kagan has been in legal academia for the great majority of her career, and her work there – and especially her work as a scholar – provides the main justification for putting her on the Supreme Court. (Her career as a university administrator would seem to have scant relevance to her candidacy, and I’ve given attention to that side of the story only because this aspect of her resume has been touted so much by her most enthusiastic supporters). After all, she’s never been a judge, and she has spent very little time actually practicing law. People, and most particularly people who are not legal academics, should be able to consider that work on some basis other than the Obama administration’s predictably fulsome praise for its nominee (Obama has called her “one of the best legal minds of her generation”).

Second, a close examination of that career is a useful reminder of the extent to which both social privilege and sheer randomness affect human affairs. Consider, for instance, how Kagan’s academic career almost flamed out altogether. It’s a credit to Kagan’s intelligence, hard work, and perseverance that she managed to elicit a positive tenure vote on the basis of a shaky file in 1995; that four years later, within weeks of suffering a couple of serious career reversals, she was able to land a position at Harvard; and that she was able to plausibly remake herself into an administrative law scholar in so short a time. But Kagan’s rise to national prominence is also very much a tribute to how crucial it is to have many friends in high places – in particular friends like Lawrence Summers, whose academic and political connections seem to have played such a crucial role in the revival of Kagan’s flagging career. In other words, a critical examination of Kagan’s accomplishments belies claims that she’s particularly well qualified to serve on the Court. No one doubts that Kagan is intelligent, hard-working, well-educated, legally knowledgeable, and adept at charming and otherwise impressing influential people. Those qualities, however, do not distinguish her from quite literally thousands of other people who are by such standards equally well suited to serve on the Supreme Court.

The bottom line is that a close look at Kagan’s formal credentials to serve on the Court reveals there is nothing extraordinary about her, other than the extraordinary combination of social privilege and the ability to exploit it that has put her in her current position. This makes it all the more imperative that the public process leading up to Kagan’s confirmation should have produced a satisfactory answer to the almost wholly unresolved question of what Kagan’s fundamental legal and political views actually are. This it has completely failed to do.

Not surprisingly, Kagan’s confirmation hearings turned out to be little more than a three-day charade, during which the candidate uttered reassuring banalities about how she would be a “fair” and “objective” judge, while refusing to answer any substantive questions about legal and political beliefs. Where, for example, does Kagan stand on matters of executive power in war time, or the legality of “enhanced interrogation techniques,” aka torture, or on the constitutionality of campaign finance reform? With a Senate vote on her nomination looming, no one knows, because she has never published or uttered a word on these or dozens of other crucial questions.

The most interesting question about the Kagan nomination remains this: Why did Barack Obama nominate someone with largely unknown legal and political views to a lifetime appointment on the Supreme Court? Under the circumstances we can do little more than guess, but I would venture that three inter-related factors were crucial. First, Obama himself, as a former president of the Harvard Law Review and University of Chicago law professor, has been immersed in cultural context — elite legal academia — which puts a great deal of stock in the belief that being a good Supreme Court justice is largely a matter of technical competence. Legal academia is (quite literally) invested in the idea that being a “good” judge means accepting “good” legal arguments and rejecting “bad” ones, with good and bad defined as the correct and incorrect application of legal rules. This belief is absurd – any case that reaches the Supreme Court can’t be resolved merely through the application of legal rules – but its persistence signals how important it still is to American law schools, which remain committed, against all intellectual odds, to maintaining a sharp distinction between “law” and “politics.”

That distinction allows a lawyer-politician such as Obama to indulge in the fiction that a prospective justice’s politics are largely or wholly irrelevant to the question of whether she ought to be nominated. In its most simple-minded and politically popular form, the argument is that if Kagan is an intelligent, hard-working person, who knows her subject matter, and who is “objective” enough to keep her political beliefs separate from her job as a judge, then we really don’t need to know anything about those beliefs.

There’s little doubt former Professor Obama understands how that argument ignores the extent to which Supreme Court justices’ political commitments cannot, even in theory, be kept separate from their legal views (although naturally President Obama is not in a position to acknowledge this). Consider, as just one of an almost limitless series of possible examples, the question of whether the Supreme Court ought to continue to uphold a constitutional right to abortion. Answering this question requires a justice to take a stand on, among other things, whether the meaning of constitutional language should be treated as fixed by the intentions of its authors, as well as under what circumstances following case precedent should outweigh other considerations, and the extent to which the enforcement of judicially-identified fundamental rights should trump the outcomes of the legislative process. None of these questions have legal answers in any useful sense: each of them (and many similar questions) is every bit as political as the question of whether the United States should withdraw from Afghanistan, or whether the estate tax should be abolished. This brings us to the second factor that allows someone like Obama to nominate someone like Kagan.

Although most legal academics greatly exaggerate the extent to which controversial legal questions can be reduced to technical exercises in formal rule application, most such people, especially at elite institutions, also recognize that technical competence by itself cannot determine the outcome of Supreme Court cases. Yet they have another escape route that allows them to avoid acknowledging that, at the level of Supreme Court decision making, the distinction between law and politics is largely meaningless. That escape route appears whenever such people invoke the need for “good judgment,” “common sense,” “reasonableness,” “sound public policy,” and other such phrases that are all shorthand for “the (narrow) range of political beliefs considered acceptable among people such as ourselves.” This tendency is captured well in a passage from The Legal Process, the written version of the enormously influential course taught at Harvard Law School by Henry Hart and Albert Sacks in the 1950s and 1960s, which argues that judges should interpret legislation as if it were the product of “reasonable persons pursuing reasonable purposes reasonably.” An institution must maintain a high degree of ideological consensus to mask the fundamental emptiness of that sort of advice — and for the most part elite legal academia has been up to the task.

This, I think, is the ultimate explanation for why Obama could with such confidence nominate a candidate for the Supreme Court who remains, in conventional terms, a legal and political blank slate. The very fact that such a person could become dean of the Harvard Law School, Solicitor General of the United States, and now apparently a justice of the Supreme Court, tells us a great deal about how members of the contemporary power elite in America, whether they call themselves “liberals” or “conservatives,” see themselves. For Elena Kagan presents a particular kind of blank slate to the world: one that appears to have been the product of, among other things, exquisitely calculated careerism. And that sort of careerism is by necessity always grounded in the relentless pursuit of the approval of the legal and political and economic establishment — something that itself is always inimical to significant legal, political, or economic change. Kagan, in short, is the kind of candidate who is most popular with admirers of the status quo. Indeed, Obama’s nomination of Kagan suggests that, for all his talk of “change,” he is himself at heart a comfortable denizen of Establishment America – that place where people with the right sorts of resumes rotate profitably between Wall Street, Washington, and the Ivy League, while praising each other for having “good judgment,” and being “reasonable” and “non-partisan.”

The relative ease with which Elena Kagan is being confirmed to a lifetime appointment on the Supreme Court illustrates the extent to which Establishment America believes that a member of the club in good standing – someone who has gone to the right schools, and gotten the right kinds of jobs, and befriended the right sorts of people – can be counted on to do the right thing, even though her own legal and political views remain largely unknown. Naturally, from the establishment’s perspective, the right thing is to do nothing that might seriously disturb any of the social arrangements that continue to serve its interests so well. And in the end, Obama’s faith in Kagan is most likely based on a well-warranted belief that, as a Supreme Court justice, she will prove to be as acceptable to that establishment as Obama himself.

*A note on the sources: While researching this piece I spoke to several people who were willing to be quoted anonymously, and several others on background. Three people whose views I particularly wanted to get, given what I was told about their interactions with Kagan, refused to talk to me at all. I was disappointed, but not surprised, by the unwillingness of legal academics to put their criticisms of a former colleague and soon to be Supreme Court justice on the record.

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