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Please stop hitting me, Professor Kagan

As Glenn Greenwald points out, skepticism about the Kagan appointment issuing from anyone left of Miguel Estrada (who by the way thinks Kagan is a terrific pick) has been met with the sort of response engendered by essentially tribal loyalties. “Our” team’s captain has made his decision, and now it’s time for everybody to get dutifully on message. All this is natural and predictable; what I find more interesting is the extent to which the tribalism of legal academia is playing a role in the support for Kagan. It’s hardly surprising that Kagan’s friends and colleagues from Harvard and Chicago are leading the charge in her behalf. What’s more notable is the number of conservative legal academics, including Stephen Bainbridge, Eugene Volokh, Charles Fried, and Glenn Reynolds, who are either enthusiastically supportive or at least not opposed to Obama’s pick.

Update: Ken Starr thinks she’s a great pick as well.

One particularly striking feature of the Kagan nomination is the extent to which it threatens to throw an unflattering light on various aspects of legal academia. It’s no doubt coming as a surprise to lots of people in other precincts of academia that it’s possible to get tenure at two of America’s top universities while publishing as little as Kagan has published, especially given that nothing she’s ever published was subjected to a genuine peer review process prior to publication. (Her articles in the Chicago and Harvard law reviews were chosen by Chicago and Harvard law school students, some of them who were in her classes at the time. Her two pieces in the Supreme Court Review were chosen by members of her own current faculty in the first instance, and her former faculty colleagues in the second). This, of course, is not primarily a criticism of Kagan herself, but of the system which has produced her — a system which among other things rewards puerile obsessions with structurally phony citation counts as a substitute for actually reading and evaluating what somebody has written.

Yet the advice to hate the game not the player rings hollow when the time comes to decide whether a particular player should be promoted to a different league altogether. Speaking of that game, consider this vignette about Kagan’s teaching:

As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.

Here’s the thing about the Socratic method: it freaking blows when people are not prepared. Sure, it’s horribly embarrassing for the person who is stumbling through, trying to answer questions based on cases he or she hasn’t read. But it really just slows the whole class down. Yes, 5% of us didn’t read International Shoe, but 95% of us did; can you focus on the ones who did their homework?

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
PROFESSOR KAGAN: ALOUD.
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Given that we know so little of substance about Kagan, I suggest this little incident has some evidentiary value. It’s not Kagan’s fault, after all, that the standard publication and evaluation process for legal academics is a bad joke (although of course she can be criticized for the actual content, or the absence of content, of the texts she generated while taking part in that process). But, as even the cowed and terrified Mr. Mystal recognized, not too many law professors today indulge — or at least not to anything like this extent — in the combination of authoritarian browbeating and pedagogical infantilization that are the hallmarks of the classic “Socratic” (sic) method.

That method was (is) a horribly ineffective way to transmit substantive knowledge. If educational theorists agree on one thing it’s that pedagogical terrorism doesn’t work — assuming the point of the exercise is for people to actually learn what you’re claiming to teach them. But of course as critics have been pointing out for many decades now, that was never the real point. Here is a small piece of Duncan Kennedy’s more than 30-year-old critique of the classic method:

The classroom is hierarchical with a vengeance, the teacher
receiving a degree of deference and arousing fears that remind one of high school
rather than college. The sense of autonomy one has in a lecture, with the rule that
you must let teacher drone on without interruption balanced by the rule that
teacher can’t do anything to you, is gone. In its place is a demand for
pseudoparticipation in which one struggles desperately, in front of a large
audience, to read a mind determined to elude you. It is almost never anything as
bad as The Paper Chase or One-L, but it is still humiliating to be frightened and
unsure of oneself, especially when what renders one unsure is a classroom
arrangement that suggests at once the patriarchal family and a Kafkalike riddle
state. The law school classroom at the beginning of the first year is culturally reactionary.

Now as Kennedy goes on to point out, this “method” is not merely culturally reactionary, it’s politically reactionary as well. The whole point is to produce lawyers, which is to say people, who never question the fundamental power relations encoded by the legal, economic, and cultural status quo. And in that sense, it was and remains quite effective. As TT points out in a comments thread below:

How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

Precisely. Indeed that’s what the classic Socratic “method” is all about — it’s a performance designed to demonstrate that the performer is In Charge Here and a Very Serious Person who you had best defer to if you know what’s good for you. In short, it’s authoritarianism at its most straightforward and distasteful — and anyone who currently practices it in 180-proof form in an American law school at this late date should be viewed with suspicion: not merely as an educator, but in terms of that person’s fundamental orientation towards hierarchy, authority, and social power. Which is another way of saying, in terms of her politics.

SCOTUS Absurd

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

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

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

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

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

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

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

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

Qualified support

I just did an NPR show with UC-Irvine dean Erwin Chemerinksy about the Kagan nomination. Some of the tepid quality of the support for Kagan is illustrated by the fact that, in the talk radio debate format, this counts as an argument for putting her on the court:

Elena Kagan is impeccably qualified for the Supreme Court and will be easily confirmed. Ironically, her greatest strength for the Obama administration is also her greatest weakness: she has very little paper trail. She’s never been a judge, so there aren’t prior judicial opinions to scrutinize. She’s written only a handful of law review articles and none are particularly controversial. What she did as dean at Harvard Law School or as solicitor general will raise questions, but she was representing a faculty and a government so those things won’t tell much. This will make her confirmation process easy and require little effort on the part of President Obama.

But that is also her risk. No one, including the president, likely has much sense of her ideology. No one knows whether she is as liberal as Justice Stevens, or more conservative, or even more liberal. And no one will know until she is on the Supreme Court.

So Kagan is “impeccably qualified” even though she

(1) Hasn’t been a judge

(2) Has done little academic writing

(3) Has written literally nothing that gives us any insight into her views on practically any controversial legal subject, let alone her philosophy, if any, of adjudication; and

(4) Has no other work experience that is more than marginally relevant to being on the SCOTUS

So her “impeccable qualifications” add up to making great grades at a top law school, and subsequently having a successful career as an academic administrator. The idea that it makes sense to put somebody on the SCOTUS whose views on just about every relevant matter are, as Chemerinksy acknowledges, almost completely unknown, can only be understood in a cultural context in which an enormous premium is put on doing well on issue spotting exams and impressing other bright glib people with how bright and glib you are as well (that is, the very specific context of legal academia).

On the other hand, in the cultural context known as “national politics,” that should count as a pretty nutty notion.

Of course the fallback position among liberals is that Barack Obama knows what Kagan’s views are and we can trust him. I’m not sure that I believe either part of that hypothesis, but assuming it’s correct, it would be nice if either he or Kagan would tell us a little bit about what those views consist of before she spends the next 35 years on the Supreme Court.

Being There, Elena Kagan edition

Some thoughts on the impending nomination.

The wildly contrasting impressions about Kagan can be easily reconciled if one assumes that people who know Kagan are simply projecting their own political inclinations and commitments onto her. This is an extremely common phenomenon: if you like someone and believe she is fundamentally a good and fair-minded person, while at the same time knowing nothing about her own politics, it’s the most natural thing in the world to attribute your politics (for after all, are you not eminently “fair-minded” on all sorts of difficult political questions?) to her. Thus naïve progressives assume a Justice Kagan would be lion of the left, despite the profound affection she elicits among establishment and conservative figures (and the checks she’s cashed while consulting for Goldman Sachs), while conservatives assume she will be a “good” liberal” (which is to say not very liberal at all).

In this sense, Kagan is a much more extreme version of her former University of Chicago colleague, Barack Obama. As an elected politician, Obama has not of course been able to go to anything like Kagan’s lengths in avoiding public positions on controversial issues. Still, a year and a half into the Obama administration, progressives continue getting a rude surprise every time Obama does something profoundly objectionable to the left wing of the Democratic party – even though evidence of Obama’s supposedly progressive political agenda has always tended to consist of little more than wishful thinking.

In some ways, nominating Kagan to the Supreme Court would be the ultimate expression of this trend. Armed with a nearly filibuster-proof majority in the Senate, and poised to replace the most “liberal” (sic) member of the Supreme Court, Obama seems ready to nominate someone whose progressive legal credentials are basically invisible.

Progressives – and indeed people of all political inclinations – should demand more. In theory, there’s nothing wrong with nominating someone to the Supreme Court who has never been a judge. And I have no reason to doubt that Elena Kagan is as fine a person as all her friends say she is. But in practice, a lifetime appointment to the Court should require more than having lots of friends in high places. Meriting such a position should involve clearing a very high evidentiary bar. In Kagan’s case, that bar seems to have been placed on the ground.

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The strange career of Elena Kagan

In stark contrast to other current and former law professors whose names have been floated recently as SCOTUS candidates, such as Pam Karlan, Harold Koh, and Diane Wood, Elena Kagan has written almost nothing, and what she’s written is both unimpressive on its own terms, and tells us very little about what sort of justice she would be.

As a sociological matter, comparing Kagan and Harriet Miers is, of course, outrageous. After all, Kagan is one of the most brilliant legal minds of her generation. How do we know this? Just ask her friends!

There’s nothing wrong with putting a non-judge on the SCOTUS, but given that such candidates can’t be evaluated on the basis of their work as judges, it’s all the more imperative that their views on both substantive legal issues and general jurisprudential questions need to be a matter of public record. That it’s necessary to even say such a thing is a sign of how bizarre Kagan’s nomination to the Court would be.

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