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One More Kagan Point


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

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

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

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

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