Home / General / Elena Kagan, Barack Obama, and the American Establishment

Elena Kagan, Barack Obama, and the American Establishment


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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  • slothrop

    Looks like you’ve just written a chapter of the 2010 version of C. Wright Mills’s White Collar.

    There really are elites who act in a coordinated way to defend the collective interests of their class.

  • I was very critical of everything you’ve written on Kagan that I’ve read, both here and one other place, can’t remember if it was HuffPo or The Daily Beast. This is a huge improvement, and I find very little to fault about it.

    I would point a couple things out. First, your fair treatment of Kagan here also contains the seeds for a pro-Kagan argument. The difficulties in her rise upward might be reconfigured to emphasize her non-establishmentarian bona fides. Your references to her sterling qualities argue in her favor. As you say, law profs like to grumble. Et cetera. However, I’m willing to admit that you probably have the better argument here.

    Second, a lot of this falls in the category of “man bites dog.” Supreme Court nominees are acceptable to the Establishment. Yup. Supreme Court nominees don’t say much of substance during confirmation hearings. Yup. Adults in high pressure settings sometimes abuse a door or two. Yes. If you really thought that Obama was capable of reversing these tendencies, I don’t know what to say.

    Third, the idea that Obama is fostering some idea that judges can remain above politics is absurd on its face. Obama is a professional politician, and resisted the lures of academia after getting pounded by Bobby Rush many years ago. I would suggest that Obama’s current address is proof of his political instincts and skill. Furthermore, Obama’s status as a former constitutional law professor provides him with far more expertise in negotiating this subject, not less, as you kind of imply a couple times. In short, on the specific subject of constitutional law and the related subjects of judicial appointments, I think it’s fair to stipulate Obama’s deep knowledge.

    Having said that, the way politics works is that someone gets elected to the White House and that person gets to decide who is nominated for the Supreme Court when openings arise. Obama, if he is anything, is the representative of the middle-left area of the spectrum, and those of us who voted for him are obliged to trust him to some degree. Many people reading LGM don’t agree with that premise, as I learned the hard way, but the act of making a cause celebre out of a nominee from our party has significant costs and obscure benefits, in my opinion.

    Lastly, your article contains reference to a great many positive and negative qualities belonging to Kagan. Since Obama is an intelligent man, a good politician, a worthy Democrat, and so on, and there can be no doubt that Kagan is qualified for the Supreme Court (you say so yourself, when you invoke the “thousands” of other people you might be as well — you didn’t mean it that way, but that’s what it signifies to me), I see no reason to gainsay the premise that Kagan will probably be a good justice and might well be an excellent one. And might well be a disaster. But nobody ever said SCOTUSing was an exact science.

    • Warren Terra

      This is a huge improvement, and I find very little to fault about it.

      Indeed. If only Campos hadn’t so thoroughly disgraced himself with his prior blog post about Elena Kagan’s candidacy, it would be easier to take Campos seriously when he, as here, appears to take his subject seriously, and to write actual meaningful criticism.

      • Amanda in the South Bay

        eh, I don’t think Campos disgraced himself earlier at all. I don’t think there was enough pushback against a very establishment, underwhelming candidate.

        But I’m all for mocking his somewhat over the top coverage earlier-like Lawyers Guns and Elena Kagan or something like that.

        • There was plenty of perfectly fine criticism of the choice. Scott made a lot of it on this very blog. Paul’s posts were disgraceful.

          • Anderson

            So, did Campos ever come up with any evidence that Kagan wasn’t really Trig’s mother?

          • Ed

            I’d expect you to take that tone with anyone who raises questions about an Obama nominee.

        • Warren Terra

          I’m all for pushback, and I think this post could have been a fine example of substantive pushback, especially if it had been written a couple of months ago.

          On the other hand, the post I linked was an utter embarrassment, and its only useful function might be to serve as a warning against taking Campos’s subsequent posts seriously.

          • Incontinentia Buttocks

            I think this is a very thoughtful post. And I also didn’t like Campos’s earlier stuff on Kagan (though I share his skepticism about the nomination).

            But I can’t for the life of me think of a reason why, on this thread, we ought to be discussing the old, less good posts when we could be discussing this new, much better post.

    • on the specific subject of constitutional law and the related subjects of judicial appointments, I think it’s fair to stipulate Obama’s deep knowledge

      Oh boy, I have such respect for Obama’s constitutional knowledge, since he refuses to fulfill the president’s job and enforce laws against torture, and he disregards the Constitution’s proscription against deprival of life without due process.

      Good article, Paul. Keep it up.

      • The question at issue is, Is Obama trained in constitutional law? Clearly, he is. Your disagreement with a position he has taken is not germane to that question.

        As an example, Howard Dean either is or is not a doctor — if one is trying to establish that Dean doesn’t know anything about medicine, a person’s annoyance at his speaking style or political philosophy is nonresponsive.

        • Incontinentia Buttocks

          I can’t speak for Oscar Leroy, but my disagreement with you about the attitude you believe we ought to take toward this nomination is much, much deeper.

          Putting aside any of the particulars of the case, I don’t believe that any president deserves the kind of deference you propose to give this president on his supreme court nominees.

          Neither Obama’s intelligence, nor his learning, nor the fact that he studied and taught constitutional law, nor his party, nor his (granted for the sake of argument) center-leftism, nor the fact that I voted for him (expecting him, it should be said, to govern rather as he has) earns him such deference.

          A supreme court justice is a member of a separate branch of government who serves for life. I can see the argument that a president deserves the kind of deference you suggest for cabinet nominees and other subordinate officials. But for a supreme court nominee? Absolutely not.

          We have an affirmative duty as citizens to evaluate such nominees independently. And, more importantly, our Senators have a duty to do so (though I think that process has thoroughly broken down).

          • witless chum

            This, IB, this. Especially in this case, because we’re replacing the Last of Mohicans of Leftish Jurisprudence with, likely, Stephen Breyer or David Souter.

            And in response to Martin above:
            The point I take from Campos’ article is that Obama’s experience in elite law schools is a point against him here, given that I want someone at least as leftish as Stevens to replace Stevens.

          • To continue this frustrating conversation, at no point did I suggest that any president deserves any amount of deference based on his academic training or intelligence, and if you thought I did, then you’re misunderstanding me. Campos implied a series of possible avenues of attack on Obama/Kagan that were absurd on their face, among them that Obama isn’t aware that judicial appointments are a political matter and, to a lesser extent, that Obama is not nuanced in the arena of legal thinking. Both of these claims are severely undermined by the most cursory examination of who Obama is — mentioning Obama’s training as a legal scholar is part of that examination. You may not like, say, Mel Gibson, but to imply that he doesn’t know much about making a movie would be silly.

            It is precisely because SCOTUS nominations are political that I oppose beating Obama up for it. As I mentioned below, Campos’s post can be taken as a tacit admission that there are no substantive grounds for opposing Kagan’s nomination. None. She falls into the pool of experienced legal scholars from which Obama is permitted to choose his nominees. Period.

            Given that, one has to ask what the left-wingers who are upset about Kagan actually think they’re accomplishing. As you point out, SCOTUS nominees are not decided by plebiscite — they are chosen by the elected president! This is Con Law 101. Obama has made his choice.

            We can re-hash the argument about how liberal Obama is. I get that he behaves like a centrist — he’s the president of the United States, you know — but he’s also, simultaneously, got better progressive bona fides than any president since FDR. He just does. I know he’s been under hysterical attack from the moment he took office — you don’t need me to tell you about that. I take the view that the Obama administration is in jeopardy and needs support from, er, his supporters. I am not enthusiastic about impaling his presidency on the altar of judicial transparency, thank you. I take the view that Kagan needs to be strenuously opposed to be incompatible with the view that Obama’s presidency has been worthwhile and is worth saving/prolonging. In that sense these objections feel flippant. But maybe I’m misunderstanding this Kausian experiment in keeping your allies honest.

            • Anonymous

              “I am not enthusiastic about impaling his presidency on the altar of judicial transparency, “. This is the motive of those married to their own poor judgment. This is the motive of the journalists who tried to kill the Wright story. This is the motive of the scandal ridden climate change “scientists”. There are questions as to Obama’s academic qualifications and his mediocre law school record. Interestingly his career, and Kagan’s, mirror the same lack of experience, academic mediocrity and the arrogance that often accompanies that lack of experience. Blank slates are actually sometimes blank. Experience is the usual harbinger of good judgment.

            • witless chum

              As I mentioned below, Campos’s post can be taken as a tacit admission that there are no substantive grounds for opposing Kagan’s nomination. None. She falls into the pool of experienced legal scholars from which Obama is permitted to choose his nominees. Period.

              If you want to take “Is very likely not as left as John Paul Stevens” as non-substantive, I guess.

              The right was able to torpedo the nomination of Harriet Miers, because she was unacceptable to them, and it would be a better world if the left could/would do so to Elena Kagan. Or more accurately, if Obama knew that the left would do so and thus wouldn’t nominate her.

              • You’re mixing up politics and qualifications. Kagan does fall into the pool of acceptable nominees, your opinion of her politics has nothing to do with that. You’re basically saying that Kagan is not qualified to be a left-of-center justice, but that’s not what I was saying. All the carping in the world over Kagan’s thin resume can’t hide the fact that she does, easily, clear the bar of whether she is qualified or not.

      • Bill M

        I agree, especially his lack of border enforcement. Unless you want to just pick and choose the laws he enforces.

        • DocAmazing

          How does his border enforcement differ from that of his predecessor?

  • firefall

    Honestly, is this any more than a carefully shaded character assassination? ‘some people’, ‘an academic’, ‘someone else said’.

  • Joe

    “This article addresses what should be a puzzling question: Why did Barack Obama nominate Elena Kagan to the Supreme Court?”

    Why is it puzzling? She is a safe choice, liberal enough (being a Clinton staffer helps, at least if you are a fan of Clinton), likable, apparently pragmatic / able to interact with the other side (above the fray, no more red/blue politics alone), etc. Oh, as to her not being a judge or “great,” recall Obama served in the Senate for a few years after service in a state legislature before becoming President.

    The annoyance is that she would have made a better third pick. But, Obama didn’t think long term. Or, the fact she was comfortable (the person and concept) led him to pick her. We can be disappointed, but puzzled?

    Why? You try to say, but the premise is off, so I’m left a tad cold.

    • Paul Campos

      The evidence that Kagan is a liberal of some sort comes down to the fact that she was hired by two Democratic presidents. But this assumes Clinton and Obama hired her at least in part because of her politics. Yet I spoke to literally no one at either Chicago or HLS who claimed to know anything about Kagan’s political views. And her writing — what little there is of it — tells us basically nothing on this score. So it comes down to, apparently, a kind of seat of the pants ethnography. Kagan “seems” like she should be a liberal, given her family background etc. The piece tries to explain why that was good enough for Obama.

      • I would think that being nominated by a Democratic president is prima facie evidence that she has liberal views.

        • Amanda in the South Bay

          By that logic, David Souter was a solid conservative cause he was nominated by a Republican for all of his positions (state and federal)?

          • Joe

            Well, actually he is an old time ‘conservative’ in the John Harlan sense.

            I think it is also a matter of labeling. Who is a “liberal” really? I think the word is being used variably. For instance, until Stevens retired, the norm was to say there were four liberals on the Court.

            But, given some of the rulings the four supported, that is debatable. I am using “liberal” in that sense, and the fact the term has been watering down is telling, but doesn’t change the fact that by that light, she is a “liberal,” or has the appearance of being one.

            For instance, conservatives don’t reject originalism in the way she did.

        • Incontinentia Buttocks

          Because we all know that everyone in the Democratic Party is liberal?

          In fact, that’s simply not the case. The Democratic Party is a huge tent, which includes people from Dan Boren to Barbara Lee and everything in between.

          The two parties are not mirror images of each other. The Republican Party is an ideologically conservative party. There is not a single significant Republican elected official who can be called a liberal (though in the recent past there were–e.g. Linc Chafee before he lost; Mike Bloomberg, perhaps, before he left the GOP). The Democratic Party is all over the map. It is full of conservatives of various sorts. It also has a significant number of liberals.

          Now you might want to say: look at Elena Kagan, where she comes from, where she went to school….she’s not Dan Boren or Bart Stupak! But that’s precisely what Paul properly calls “seat of the pants ethnography” above.

        • hv

          I would think that being nominated by a Democratic president is prima facie evidence that she has liberal views.

          Funny, if you replace nomination with health care reform, you get a different outcome. Or torture. Etc.

          Obama has been a mixed bag when it comes to being liberal, so he gets no automatic pass. It is embarrassing that you aren’t measuring these things and basing your reactions on the true results.

          • OK, hv, please tell me what part of the health care process we just endured would suggest to an objective observer that a far more liberal reform plan would have been easier to pass? Answer: None.

            You’re beating up Obama for … passing the most progressive law in decades. This is what I mean when I say the people who criticize Obama for being insufficiently left-wing aren’t serious.

            • You seem to have your mind made up here, based on the a priori premise that whatever Obama does is the most progressive thing that could possibly be politically viable. (“Answer: none” and your comment upthread that we are “obliged to trust him.”)

              Obviously, a lot of people disagree with that. The debate about how the health care bill could have been better, in terms of both public policy AND political strategy, went on for well over a year, so I’m not going to rehash it here. Suffice it to say that IMHO what finally passed is mostly corporate welfare for the insurance industry, and is the worst possible “reform” that could have been enacted short of doing nothing at all. If anything that’s not downright reactionary qualifies as “progressive” now, then the word has lost all meaning.

              As for Obama, how one evaluates him (and his nominees and policies) is a matter of context. On the one hand, I think he’s in many ways the best president in decades… but that’s grading on quite a curve. On the other hand, I’ve been hugely disappointed with a lot of his policy decisions and his apparently reflexive inclination to be overcautious and deferential to the center-right establishment… as this essay demonstrates.

              • The question at issue was Obama’s lack of progressive bona fides with respect to health care reform. We know that the less-progressive version of health care that Obama pushed was met with fierce resistance and only barely passed by a hair’s breadth. hv was asserting that the health care process demonstrates that Obama is not a progressive, when it rather proves the opposite. At best, hv has a theory that a more progressive package would also have passed, and I think the evidence is strongly against him on that one.

                I didn’t mean to imply that Obama’s actions are ipso facto the most progressive thing possible — possible is a tricky word in this context. What I was saying is that the Constitution leaves it up to him, and barring any clearly disqualifying trait on the part of the nominee, it is unwise to assume bad faith, bad judgment etc. That’s just my opinion. The carping over the “disappointment” of Obama, as you so eloquently describe, says a lot more about unrealistic beliefs about politics than any failing on Obama’s part.

                That is NOT to say that Obama has done everything right, and it is NOT to say that I myself am also not somewhat disappointed. But after nearly two years of watching Obama govern and the reaction to it, I have adjusted my expectations somewhat, I am far more upset about the other side than our side, and I still am prone to seeing health care as a large step in the right direction from a progressive point of view. No, it’s not perfect, and no, it doesn’t eliminate corporate health care, but those expectations are silly, to be frank. It’s a very good start and the best legislation of its type in many, many years. For this Obama gets hammered for not being progressive enough. I’m sorry, but that’s very foolish thinking IMO. This thread and all the LGM threads having to do with Kagan are studded with such thinking — at its extreme, the implied message is, “Obama is so not progressive that he may as well be Bush.” There’s a creeping Naderism infecting our party, and I detest it, and most of the anti-Kagan stuff I’ve read seems highly irresponsible. If we really are that tough on our own, then we deserved Bush in 2000, and we’ll deserve Gingrich in 2012. I can only state in the harshest possible terms: I AM NOT DOWN WITH THAT.

              • Also, I’d just like to say, you know, I’ve been verbose here, and picky, and sometimes strident — and yet I feel woefully outnumbered by the (to my mind) shocking number of people weighing in who think that Obama /= progressive is just self-evident. That worries me, a lot. Being president is a tricky thing, you basically have to hew a pretty MOR line, you just do. This “non-progressive” president is getting beat up all over the country for being a communist, a European-style statist, etc. I do worry for him, and I worry especially because he’s having such trouble with people who should be his allies. I’m not against disappointment in Obama per se, or the idea that progressives need to hold his feet to the fire. But in practice that view is all too often indistinguishable from the notion that it’s hardly a progressive benefit AT ALL that Obama is in the White House. That view really alarms me, and so I feel justified in taking what might seem as an indefensible position (it’s not) in the face of what appears to be near-universal condemnation of Obama in progressive quarters. Obama’s record is simply not that bad. And being flippant about the negative alternatives is no way to make friends with the people progressives need to convince.

      • Joe

        The sentence quoted says it is to determine why she was nominated to the Court, not why she was made a policy advisor for Clinton. As noted, that wasn’t some big mystery.

        As to her being a ‘liberal,’ clerking for Justice Marshall, serving two Democratic Presidents, opposing stripping habeas, voicing opposition to the military recruitment policy and probably various other things suggest, yes, other than things like her brothers and mom being public school teachers and such, that she is liberal enough.

        And, even if it’s wrong, at the very least, it has an appearance of being liberal. Again, where’s the surprise? Many people — even Scott — suggested she would be a good third pick. Why if it was such a big surprise she was nominated? Such a big surprise should still be one in a year or two.

    • Yeah, I stopped reading after that sentence.

      • Tirxu

        And then, for some reason, you skipped the whole article to find some place in the comment to tell us all about your non-reading.

  • 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.”

    Very true, and exceptionally well said. Thank, Paul.

    • Anderson

      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

      Like without the Kagan nomination, that wouldn’t have been as obvious as white on rice and ugly on an ape? GMAFB.

      Next, Campos will be noticing that Democrats are not in fact socialists, despite what Fox News says about them. Laser-like intuition, that Campos.

      • NonyNony

        Next, Campos will be noticing that Democrats are not in fact socialists

        I’m actually amazed that so many liberals seem to think that the Democratic Party is a liberal party, rather than a party that has liberals in it. I think of it as evidence that no one is immune to Republican spin.

        Democrats are the status quo party and have been for as long as I’ve been alive. Hell FDR’s great advances in our social welfare net at the start of the 20th century were specifically to protect the status quo. He even complained about how the rich assholes didn’t give him any credit for keeping their heads off of pikes.

        Obama campaigned using the word “change” but anyone who actually listened to the words in his goddamn speeches could tell exactly what that change was – a change back to the status quo of the Clinton years. Republicans are the radicals and reactionaries, Democrats come in and pull things back to the status quo and keep the country stable. It’s a messed up dynamic, but it’s the dynamic that has been in place since at least FDR.

        • Bill M

          This has to be one of the most bizarre comparisons I have ever read. Obama just put 16% of the economy on the road to nationalization and his is the party of the status quo? The Democrats are the ones who turned patronage into an art form and reinforced the corporate-government link, i.e. Chrysler, GM and AIG.

          • DocAmazing

            That word, nationalization–I do not think it means what you think it means.

  • Rick Perlstein

    This is a stunningly good piece of intellectual journalism. It’s to the discredit to the likes of TNR, the New Yorker, the Atlantic, etc., that it did not appear there.

    • hirst

      That’s a hell of a big compliment, especially if you really are the Rick Perlstein who wrote Nixonland.

      This piece seemed very dog-bites-man to me (which is what Martin, above, seems to have meant to say: dog-bites-man is ordinary, man-bites-dog is surprising and newsworthy). But I did appreciate Paul exposing some dissenting voices on the issue of how good a dean Elena Kagan really was.

      • People often use “man bites dog” to mean it the way I did; I share your puzzlement.

      • DocAmazing

        Man-bites-dog may be more newsworthy, but we live in a society where a lot of damage is done by dogbite (to sontinue the metaphor). Bringing attention to the commonplace-and-destructive is a worthwhile endeavor.

    • I too am impressed by your praise, even as I also admire the utility in getting this material out there.

      I was thinking about my long response to the post and realized that I could have been more brief: It just seems like small beer to me. Campos cannot demonstrate that Kagan is incompetent, dangerous, unprofessional, or anything like that. Since that standard is not met, there’s no valid reason to object to her nomination. Campos doesn’t know it, but he’s arguing in favor of her confirmation.

      • witless chum

        I read Paul to be suggesting that the problem with the Kagan nomination is the standard she meets, not Kagan herself.

        The narrow track we’ve somehow prescribed for Supreme Court nominees functions, whether by design or not, to produce candidates that will fall on a relatively narrow, centrist ideological spectrum. This tendency has been sometimes good for my political interests (Kennedy and Souter won’t overturn Roe), but also means that Earl Warren would not become a Supreme Court justice today. To people who like what Warren did with the court, that’s a problem. (Not an argument to appoint the current governor of California to the court)

        • Precisely: the argument is not that she falls short of the accepted standard as “qualified,” but rather that the standard itself derives from a process designed to produce people who think similarly.

          Just as with corporate career advancement, those who think differently and value different priorities get weeded out along the way, and never get a chance to rise to the top. It’s not (quite) as explicit an old-boy network as it once was, but the basic functioning hasn’t really changed.

          (What’s really discouraging is the way this process has taken over so much of the media, as well. Journalism used to be a haven for gadflies and iconoclasts, but no longer. But I digress…)

    • Anderson

      This from the man who took how many pages to explain that Nixon was dishonest and that LBJ’s support for racial equality turned the country against the Democrats? No wonder he’s impressed with Campos’s thesis: it only took Campos one blog post to point out the totally fucking obvious.

      • Walt

        I’m guessing from your two comments that you’ve never successfully convinced anyone of anything, Anderson.

      • jonnybutter

        Wow, Anderson, how did you manage to demolish two of the best works of history in the last several years in one short paragraph? Your every word is an atomic chain reaction.

        • Anderson

          Nixonland is a good chronicle of the period, but to the attempt it tries to prove a thesis, it kinda falls flat.

          That doesn’t make it a bad book — I’ve given a copy to a friend, even — but then, calling Campos’s post “a stunningly good piece of intellectual journalism” doesn’t make the post a good one, either.

      • Halloween Jack

        Well, let’s hear about your provocative, ground-breaking, award-winning works of history, then.

      • If you think that these are the primary arguments of Nixonland, you didn’t read it very carefully…

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  • Incontinentia Buttocks

    A serious question Paul. You write:

    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

    Do you really think that we have a sociologically unified power elite in this country, whose members (self?) designations as “liberals” or “conservatives” is of such little consequence?

    It seems to me that our power elite has become pretty seriously divided between “liberals” and “conservatives,” at least along sociological lines. There’s some overlap, of course (U of C is a wonderful example of this…but so is Harvard), but a degree from, say, Regents University, will get you places within the Conservative Power Elite, but not the Liberal Power Elite.

    • Paul Campos

      Good question. You’re right to point out that the power elite isn’t quite as sociologically homogeneous as I suggest here, especially on the conservative side. Still, the SCOTUS is a majority conservative institution at present, and it’s the least sociologically diverse power center in America (with Kagan all nine justices will have matriculated at a total of two law schools, plus she will be the third straight Princeton graduate to be named to the court).

  • Steve LaBonne

    Clearly Obama sees himself in her: they’re both well-connected empty suits, terrific at schmoozing and void of actual accomplishments.

    • Joe

      Except that Obama did accomplish something along with the Democrats. Try again.

      • Steve LaBonne

        They passed useless (possibly even harmful) bills with fancy-sounding names, while rushing to appease every burp coming out of Fox Noise. Oh, and never mind the continued wars and continued assaults on civil liberties. There’s a word for people who think those are accomplishments- the word is “idiots”.

      • Steve LaBonne

        And add fiddling while the economy burns to that list.

  • Brad Potts

    Ok, it seems to me that Diane Wood was an immensely better pick from all angles.

    I also know that she took a rather different path than Kagan did.

    I just wonder if political or academic success for any legal scholar is possible without significant friends amongst the establishment.

    So, I guess the question would be: Did Kagan get the nomination over Wood (who seems to hold better opinions and seems far more qualified) because of her connections in the establishment, or did Wood maintain an equally potent network of friends?

    • Anderson

      Wood is 10 years older. End of inquiry.

      • Brad Potts

        That can’t even begin to be construed as an answer to my question.

        • Mark

          How not? You’re wondering whether Kagan got the nomination over Wood because of superior Establishment connections or whether it was some other factor. Anderson is suggesting it was some other factor.

        • Pliggett Darcy

          Without a doubt, Anderson has said the stupidest things of anyone in this comments section.

          • Anderson

            Oh, good heavens. It was widely discussed before the Kagan pick, and immediately thereafter, that Wood’s being a decade older meant she would have, all things being equal, less staying power on the Court.

            Have you noticed that the GOP’s SCOTUS nominees have been relatively young in the past 30 years? Any idea why that is? Does your copy of the Constitution mention that federal judges serve for life?

            I confess to being somewhat lighthearted on this thread, because Campos is a bit off his rocker where Kagan is concerned (see the Sully comparison upthread). (And I liked Nixonland but was a bit disappointed with its lack of analysis, after all the raves.)

            So: Welcome to the internet, where not everyone thinks *your* pet subject is quite so important as *you* think it is.

            • Brad Potts

              I’m sorry I didn’t make my question clear, let me try again:

              It is established that Kagan relied heavily on her network of friends and associates. She is capable, but her rise and current position seems more dependent on who she knows rather than what she has done.

              What I want to know is the relative strength of Wood’s and Kagan’s connections.

              Simply saying that Kagan is younger does very little to answer that, as it seems that would be but one element, and in all other elements Wood seems preferable. Also, considering the uncertainty of Kagan’s positions, length of tenure would work against her by making her even riskier.

              From what I have read so far, it seems that Kagan has pulled the Geithner path to career success: never accomplish much, but charm the right people.

              • 1)Given the life expectancy of men and women, Alito was for all intents and purposes almost as old as Wood; certainly, the odds that the difference between the two will make a difference in the balance of the court, given court norms, is small indeed. And yet, I don’t recall anyone saying that Bush was insane to pick anyone
                as old and male as Alito.

                2)And focusing on age as a single variable still evades the problem that Ginsburg will be retiring next year, and while Obama could have had Kagan next year he won’t be able to get Wood. Hence, we might get two liberal Kennedys, in order to slightly decrease the odds that we don’t get a justice who willdrop dead in the last year of a Republican administration whose defeat is imminent? That would be nuts.

  • B

    What a really very good article.

    Re Obama’s establishmentarianism: David Bromwich has said it too.

  • Brautigan

    Teaching,” he was told, “is like hitting a home run at the faculty-student softball picnic. Your career here will depend on how your scholarship is judged. And if you hit a home run at the picnic, well that’s nice too.

    OT, but this explains everything you need to know about the problems in academia today.

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  • stari_momak

    Tribe, Summers are both Jewish. Kagan is Jewish. Ethnic support networks are not unknown, whether Kosovan cigarette-runners or Armenian merchants. Why not consider the possibility here that Kagan benefitted from being Jewish, and more imaginative choices (e.g. Elizabeth Warren), were disadvantaged because gentile?

  • SteveM

    Selected use of “original intent”, “stare decisis” and a “living constitution” make Supreme Court opinions completely malleable. A ham sandwich with the correct political views could be appointed to reach the desired conclusions and then back rationalize them by pointing to one of the 3 interpretive tactics. Whatever works.

    And that’s exactly what Kagan’s gonna do. Not because she’s “brilliant”, but because she can.

    The Executive and Legislative Branches are malignantly corrupted. Why should the Judicial Branch be otherwise?

  • esterhazy

    Thanks Paul–this is the best piece yet written on the Kagan nomination, period. You might have noted, though, that she is in her careerism and ability to have taken no meaningful stand on almost anything merely the Democrats’ version of John Roberts\.

    • Joel Patterson

      Well, if Kagan is the Democrats’ John Roberts, then I’ll take that offer. John Roberts has been pretty effective at using the SCOTUS to advance conservative ideology and policy in the face of massive electoral losses for the Republican Party and the disgrace of George W. Bush, who appointed him.

      • There was much more evidence that Roberts was a movement conservative than that Kagan is a liberal.

  • 72112722

    What about justice?

    Does that “quaint” objective matter any more? Do the privileged, arrogant elite who are selected to serve in public office – especially for life on the federal judiciary, or on the Senate committee empowered to grant or deny such lifetime tenure – ever even have to pay lip service to that fading concept, for which they feel so little personal need on their high perches? Or is it now all about credentials and who you know (and thus favor and shield when in power), hang individual merit or worth?

    As to individual merit and worth, assuming that those dissenting opinions from Harvard faculty members are true, that’s all I need to know about Elena Kagan to hope that she quickly comes to loathe her service on the Supreme Court that she’s groveling at the feet of power to reach. [Since we know that the Democratic Senators who should be considering her nomination with an open mind (rather than rubberstamping her in devoted service to a president and a political party, hang their oaths of office) are cut from the same cloth as Kagan and Obama, and will pay no heed to these warnings.]

    The way we treat “underlings” when we think no one’s watching is our measure as a human being. And I want human beings with unapologetic Constitution-loving values, who strive for justice for all of humanity, in positions of immense federal power. Especially in those unaccountable positions (so long as impeachment remains “off the table”) charged with overseeing, in the federal court of last resort, the hundreds of judges serving in the 12 circuits and in their 110-odd district courts, and with selecting from among the nationwide flood of cases begging for honest, justice-driven review by the Supreme Court every year.

    Thank you very much, Paul, for this comprehensive, careful examination of what passes for the career of Elena Kagan. Your closing paragraph describes the current reality precisely as I see it.

    • Anderson

      Or is it now all about credentials and who you know

      Why would Obama appoint someone to the Supreme Court whom he *didn’t* know or who *didn’t* have credentials?

      Which of the 8 justices now sitting was the best possible candidate based on “individual merit and worth”? How would I even measure those qualities? And would 10 different people measure them differently?

      What I hear on this thread are several people who just don’t like the fact that SCOTUS nominations aren’t made with Magic Pixie Dust.

      • 72112722

        Why are you twisting my use of the common phrase “who you know” (meaning friends in high places who advance your career, regardless of merit, which I was obviously criticizing) to pretend that I said that Obama, or any president, somehow shouldn’t know of, or even know personally, the nominees he selects, or that those nominees must be devoid of credentials?

        React to what people write, not to your own hostile biases.

        I would measure, and I want our presidents to measure, the individual merit and worth of a judicial candidate by their work product, and by how they have carried out their responsibilities when in positions of power (as in “without fear or favor”), regardless of “who they know” or what their credentials may be. I myself assessed Kagan in my comment, based on helpful and important (and presumed-true) feedback from former colleagues, that exposes how she handled her responsibilities as a powerful law school dean.

        Most people who work recognize that people do whatever work gets done – advanced degrees, institutions, and high public office don’t somehow replace the human being. Arrogant types like to pretend otherwise, of course, and deem the worker bees to be expendable footstools for their careers. People of character, however, recognize the difference between competent workers who’ve earned their way to the top, and careerist sycophants who Kiss Up and Kick Down. People of good character, that is, unlike Obama and the politicians on the Senate Judiciary Committee (and in most of the rest of Congress), who are evidently not people of good character, based on how they’ve repeatedly used and abused their power in public office; as I indicated the first time around.

        The rest of your “Magic Pixie Dust” comment, and any legitimate point you were trying to make, escapes me.

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  • Ralph Hitchens

    Wow, what a discussion! On top of a pretty good post, a credit to the Internets.

    Not to compare my experience with EK’s (she flies in the stratosphere, I’m closer to NOE), but what’s really wrong with moving up by impressing certain people who have some ability to make things happen? It’s how I got to many of the key milestones of modestly-upward mobility in my own career. And I doubt I would have gotten those bumps had I been just one of the guys, of no particular distinction. So we have to take a lot on faith when it comes to Ms. Kagan as a Supreme; my own faith is strong enough, seeing what’s been written & said about her.

    • DocAmazing

      what’s really wrong with moving up by impressing certain people who have some ability to make things happen?

      Well, you’re honest enough to pose the question, and to admit to your own use of connections or nepotism to advance; I give you credit for that. The simple answer: a ruling group composed of those who impressed “the right people” is likely not to be the most qualified, as they weren’t actually competing with the other aspirants for leadership based on skill or competence.

      Leaving aside the classic “he isn’t very good but he is my partner’s nephew” scenario, advancement based on contacts makes a mockery of meritocracy. Of course, anyone who looks realistically at the corporate or government hierarchies in the US comes away understanding that there hasn’t been anything like a meritocracy in a long time, if ever, but it does become tiresome to hear the well-born continue to rattle on about it.

      • Anderson

        a ruling group composed of those who impressed “the right people” is likely not to be the most qualified

        So, the real problem is that the American government works like every other government in the history of the world?

        Apparently we should adapt Myers-Briggs to evaluate political leanings, and then base judicial nominations on that score plus some souped-up version of the Multistate Bar Exam (with more con law questions).

        There is no such thing as “the most qualified person to sit on the Supreme Court.”

        • Brad Potts

          So what if everyone does it that way, doesn’t mean we should be happy with it.

          I also find it hard to believe that you could not measure significant differences in qualification between Kagan and Wood.

          I may not be able to say that Diane Wood was the most qualified, but I can still say she is more qualified.

          • Anderson

            Wood is an excellent judge, but as you’ve noticed, the trend is to avoid judges with “paper trails” of published opinions.

            The very evidence you rely on to argue that she is *more* qualified, may make her *less* qualified. Even leaving aside the age issue. The point is not simply how a justice would serve on the Court, but getting the justice confirmed.

            • Brad Potts

              Do you really believe Diane Wood’s paper trail is enough to keep her from getting confirmed?

              I haven’t read anything that would lead me to believe she wouldn’t receive a confirmation vote in the upper 50s.

              Republican opposition was not exactly pronounced when it came to Wood being on the shortlist, and republicans are more interested in designating nominations with the blanket “liberal” charge which would apply about equally between Wood and Kagan as a result of who is doing the nominating.

            • Paul Campos

              What “trend” would that be? The trend that put Alito and Roberts and Sotomayor on the Court? Two of those three had long careers as appellate judges and the third was a well-known movement conservative whose political and legal positions were not in any real doubt.

              My view is that someone whose political and legal views are almost completely unknown is by definition not qualified to be nominated. The exaggeration of the quality of her other credentials merely highlights that central point.

  • Anonymous

    Kagan is a woman and her tenure decision would have turned on exactly that point. Ditto later in her career. Anne Marie Slaughter was also a thin tenure case at Chicago Law – also tenured as she was talked about as going places – also made waves as a Dean at Princeton and now is in the Obama Adminstration. So it isn’t just connections – it is very much also gender which trumps much in academic decisionmaking, as Summers himself showed us.

    • So, are you suggesting that Summers fucked Kagan, or that Obama values gender politics over everything else, or both?

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  • Paul-

    A very, very good article. Commendations.

  • DonM

    Kagan broke the law denying the Army recruiters access to Harvard graduates. That alone should disqualify her. She should have been disbarred after she filed legal papers with false statements. She has a total of 4 years legal practice.

    Really. Why would anyone be opposed to putting her on the SCOTUS?

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  • Rich R

    ELENA KAGAN: “Sen. Specter, it’s a little bit difficult to take off the advocate’s hat and put on the judge’s hat, and one of the things that I think is important is that I appreciate the difference between the two, and I have been an advocate with respect to Citizens United, and that’s the way I came to the case. It’s the way I approached the case. I hope that I did a good and effective job in it, and I believed what I was saying, but it’s a different role and it’s a different thought process, than the role and the thought process that one would use as a judge.”

    A “different role”..one she hasn’t played before getting scoring a lifetime position.‏ I suppose she will have plenty of time to learn. That is a bit different from voting in an inexperienced politician that can be voted out or term limited.

    People may be tempted to say “But Scalia had no experience as a judge either”
    Does that make you feel better about this?
    Scalia likes her credentials:
    “Currently, there is nobody on the Court who has not served as a judge –indeed, as a federal judge — all nine of us,” he continued. “. . . I am happy to see that this latest nominee is not a federal judge – and not a judge at all.”

    Sen. Dianne Feinstein, D-Calif., said Kagan had a “sterling reputation” and was “unquestionably qualified” to serve on the Supreme Court, calling her lack of judicial experience “refreshing.”

    That’s it. Where do I apply for a similar lifelong position that I have no experience performing? When they say “But you have no experience.”, I’ll say “Yup. Refreshing. Isn’t it?”

    I guess I still have the notion that the ultimate term unlimited judging positions should be filled by folks with judging experience and a related record.

    Otherwise, we have no choice but to “Hope” they have the skills.

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