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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.

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