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.