What We Can Infer about Kagan

My Pileus colleague Marcus Cole argued a few weeks ago that conservatives and libertarians should not be so unhappy with Supreme Court Justice nominee Elena Kagan, since it could have been “much worse.” With a left-liberal Democrat in the White House and a Congress controlled by the Democrats, who knows, Marcus asked, what enormity we could have gotten.

I take his point, but with all due respect to my esteemed colleague, that is not exactly setting the bar high. There are, after all, indefinitely many worse choices for almost any office. It does not follow from that that the candidate before us is the best one, or even a good one—all that follows is that she is less bad than some others we might imagine.

It is true that, as many have lamented, we do not possess much direct evidence about what Kagan’s judicial philosophy would be. She has no experience as a judge, after all, and has very little by way of scholarly publications. Indeed, this has led some to ask whether she is even qualified to sit on the highest court in the land.

The confirmation hearings thus far have also revealed little. Some have suggested that her wiliness at not giving very much information in her answers intimates a duplicitousness in her character. Perhaps. It might also intimate a cleverness: She was, after all, a student of the Bork hearings—she said in 1997 that they were “great,” the “best thing that ever happened to constitutional democracy”—so she well knows how important it is not to give ammunition to the other side.

But there is some indirect evidence. She has served as Dean of Harvard Law School. One does not become dean of the law school at Harvard without possessing at least these three characteristics: one must be very smart, one must be very clever, and one must be very liberal. All three of those characteristics are overrepresented in academia, and the more prestigious an institution is, the more likely its members are to be (a) politically homogeneous and (b) clustered ever further leftward on the political spectrum.

I think it is safe to assume that Kagan has all three of those characteristics in spades. Her smarts got her foot in the door in the high echelons of academia, and her cleverness allowed her to climb the ladder quickly while managing to offend few. Given the rarefied political environment in which she has ascended, however, I think the reasonable assumption is that she will not have been able to succeed as she has unless she also shares political sensibilities that are significantly further left than where the center in the United States is.

While it is no doubt true, then, that there are yet more radical left-wing academics that President Obama might have chosen, I think it is a mistake to think that Kagan herself will not be quite liberal, and indeed one of the most liberal justices on the Supreme Court for the next several decades.

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Kagan Could Be Much Worse

Conservative and libertarian opposition to the appointment of Solicitor General and Supreme Court nominee Elena Kagan has been lackluster at best, and for good reason: President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse. Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief.

Much of the opposition to General Kagan has been channeled to her treatment of military recruiters while Dean of Harvard Law School. In this regard, Kagan is completely without distinction among her peers. All AALS accredited law schools maintain an anti-discrimination policy that prohibits discrimination on the basis of, among other things, sexual orientation. Schools with such policies have refused to permit employers maintaining employment practices inconsistent with them to recruit on their campuses. The Justice Department, under President Bush, determined this to be a violation of the Solomon Amendment and threatened to remove all government funding from those institutions unwilling to abide by the law. Kagan, like many other law professors around the country, joined in a court challenge to the government’s interpretation.

That challenge suffered a unanimous 9-0 defeat in the Supreme Court, and forced Kagan, like all other law school deans across the nation, to choose between permitting military recruitment on campus or expose her university to the risk of losing millions of dollars in government funding.

The court challenge to the Solomon Amendment said much more about the state of American legal and higher education than it did about Kagan. It is difficult to refute the fact that large public research universities, like the rest of higher education in the United States, are within the capture and control of the left. As a 2005 study (McGinnes, Schwartz, and Tisdell) of political campaign contributions made by law professors has demonstrated, law faculties are overwhelmingly composed of and run by people with political sympathies similar to the ones held by the President and his nominee. The Justice Department’s interpretation of the Solomon Amendment forced university administrators, deans, and faculties to choose between two of the left’s most frequently articulated values, namely, nondiscrimination (over which they hold no demonstrable monopoly) and public funding of everything. When this choice between these values was put to them, we saw which one they held more sacred.

What does distinguish Kagan, however, is her track record as Dean at Harvard Law School, particularly with respect to the recruitment of conservative faculty. Contrary to popular understanding, law school deans do not hire faculty; law school faculties do. Nevertheless, few law school deans could (or would) boast of surpassing her efforts to introduce a sprinkling of conservative or libertarian scholars to the monolith of the left that is elite legal education. Some conservatives have argued that Kagan should not get credit for her efforts, since Jack Goldsmith, Adrian Vermuele, and John Manning could be hired anywhere. It is true that they should be hired anywhere, but is it really true that they would be?

I do not mean to imply that simply listening to an argument or two from the right qualifies one for the Supreme Court. It does, I think, distinguish General Kagan from many in the legal academy. It also suggests a measure of basic decency and a genuine interest in intellectual exchange that is becoming increasingly scarce. Would Kagan be the choice of a conservative or libertarian president? Of course not. The President is not likely to mimic the preferences of a conservative or libertarian. He is, however, a politician, and (in the wistful revisionist recollections of some at the University of Chicago) a legal academic. It is understandable that the President would admire someone evincing the qualities of both, and in this way, Elena Kagan permits him to replicate himself. Were the President to choose another from the legal academy, we could do far, far worse.

Examples? Don’t ask; I won’t tell.

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My softball moment

OK, the nets are all abuzz over gay rights advocates’ indignation  that the WSJ ran this  picture of Elena Kagan playing softball in the 90s when a professor at the U. of Chicago.  Apparently, softball = gay.  Who knew?

I had a personal involvement with another U. of Chicago softball photo.  When Gary Becker won the Nobel Prize in 1992, many of the papers ran a photo of him (that I can’t find, given that those were pre-internet days)  playing softball.  This involves me in a very important way because I was the one pitching to him.  Pictures of me did not make the papers.

I remember the moment well because, though he is the greatest economist of the last 50 years (so said Milton Friedman, the only other serious contender for the title), Gary is no athlete.  People were hissing at me to lighten up and let him hit, even though I was trying to put up the softest softballs I could manage.

Lots of people play softball on the Chicago Midway.  My observation of that photo is that Elena looks pretty good.  She definitely would have kicked Gary’s butt.

Becker much better in this venue than on the Diamond

Was the media secretly trying to imply that Gary Becker is gay?  I’m sure he isn’t, but then I’m not very sophisticated at reading these signals.

I, for one, happen to like playing softball.  Please don’t tell.

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So what is second order?

It has been widely reported that in 2003, Elena Kagan wrote that the “Don’t Ask, Don’t Tell” policy regarding gays in the military was “a moral injustice of the first order.”

The first order?  Really?  Surely there are some implicit qualifiers in there.  When you consider genocide, mass rape, sex trafficking, murder, slavery, Jim Crow, and a host of other high crimes and injustices, not letting someone volunteer for the military seems decidedly not first order.  I’m not even sure it is second or third order.

Perhaps if we constrain the discussion to moral injustices that are actively being contested these days, her statement makes more sense. But not really.  Even if I imagine myself an American leftist, I can’t quite come up with first order.  There would be things like abortion, contraception, voting rights, fair housing, collective bargaining and a host of other “rights” ahead of gays serving in the military.

I can’t serve in the military because I’m too old and too fat.  Certainly this is unjust discrimination because  there are definitely assignments around the world where I could make a positive net benefit to the cause, and if I had a strong desire to serve, I would be upset about it.  The military disagrees with me.  Maybe discrimination based on sexual orientation is more serious than age discrimination or weight discrimination, but how much more?

I can understand why people feel passionately about the issue, and I don’t want to debate here the merits of the policy one way or the other (especially since it is mostly dead).  Rightly or wrongly, the military makes policies it thinks will improve the performance of the military.  Certainly they are capable of unjust discrimination, and perhaps the policy really is unjust, but first order?   (Forcing gays to serve in the military might be first order.)

I’m not a moral philosopher and would hesitate ranking moral injustices that exist in the world, but this one seems pretty far down the list.

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Is she qualified?

My question is not whether Elena Kagan is qualified for the Court.  My question is whether she is qualified for tenure at a major law school.  When she was made a tenured professor at the University of Chicago, she had (as far as I can tell) only 3 5 publications (see correction below).  One of them was a book review (which counts for exactly zero in most fields) and one was a University of Chicago Law Review Article.

I’ve always been biased against law review articles.  First, they are reviewed by eager-to-please law students, not by peers.  Second, law professors submit their articles to multiple law reviews, ignoring the usual academic practice of one journal at a time (peers would never tolerate these multiple submissions, which is why they rely on cheap student labor).  This bugs me.  And since this article was published by students at her own law school, I view it basically as a glorified Professor of the Year Award.

I remember having similar questions when looking at Barak Obama’s academic  record and wondering how he managed to get hired at Chicago.

I think that the legal profession weighs federal clerkships, especially at the Supreme Court, as super-duper-important.  Whatever.  To me, that is a little like giving someone tenure because he/she was a really good research assistant in grad school.

So, qualified for the Court?  Maybe.  Qualified for tenure?  I wouldn’t vote for her.

Correction: I had some counting problems here (my bad).  According to her Harvard web page, she had 5 publications through 1995 (the year she was awarded tenure) and 2 in 1996, which should probably count in that they were likely forthcoming when the determination was made.  In total she had 2 book reviews, 2 U. of Chicago publications and three others through 1996.   My original doubts remain, but my math was way off.

Others have shared my doubts: “She was granted tenure in 1995, despite the reservations of some colleagues who thought she had not published enough,” according to the New York Times.

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Is Kagan the Harriet Miers of the Obama Administration?

Glenn Greenwald more or less says yes: a blank slate with unclear qualifications. Over at Volokh, Jonathan Adler gives some reasons why Elena Kagan might end up with a tougher confirmation fight than a clear liberal like Diane Wood would have. Note, however, that Adler’s and Greenwald’s reasons are inconsistent. Adler thinks that Kagan is definitely a liberal and that everyone will go on that assumption, while Greenwald thinks that Kagan could well be a “centrist,” deferential to the executive branch on civil liberties issues.

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Around the “internets”

1.  Mike Munger on the wise urban planners in Toronto.

2.  General James Mattis, risk, and counterinsurgency (COIN)

3.  Mark Bauerlein on education conservatives

4.  Elena Kagan – perhaps the best we can hope for from President Obama?

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