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.


46 thoughts on “Kagan Could Be Much Worse

  1. Sound thinking, Marcus. I was very worried we’d get Wood – and the battle that would ensue in the Senate would distract from the economic/role of government focus I think that conservatives and libertarians should have right now (see my post yesterday). Instead, we’d be back to culture wars.

    1. I agreed entirely with your post from yesterday, although I don’t think we are avoiding the culture wars. They are just in their infancy, and the bullets are flying from both the left and the right (as Sven’s point about NIB ideology suggests).

      The problem with Republicans, as you point out, is that they cannot seem to focus on the more widely shared economic values without being redirected to the more narrow cultural ones. I don’t think that’s going to change anytime soon.

  2. Can we please, please, please not call her “General”? She’s not a military officer. The “General” in Solicitor-General is an adjective modifying Solicitor (that’s why the plural is Solicitors-General) not a title.

    1. The title “General” is actually the correct and proper form of address for the Solicitor General (the position Kagan currently holds), as well as for the Attorney General, the Surgeon General (even when the office-holder is an Admiral in the Navy), and the Postmaster General. If you retain doubts about this, you can listen to the transcripts of any Supreme Court argument in which she is involved, as well as those of other court proceeding involving similarly titled government officials.

      Incidentally, it is also protocol to address a government official by the highest office he or she has held, even if their present office is a lower one. But since General Kagan has not held a higher office, she is till properly addressed as General Kagan.

      1. Incidentally, the “General” in Army/Marines/Air Force ranks was also originally an adjective, denoting a “general” officer with greater authority than ordinary officers. Thus we get “Lieutenant General,” “(Sergeant) Major General,” and “Brigadier General” (brigadier used to be a French non-commissioned rank equivalent to the British corporal), being officers with greater overall authority than mere lieutenants, sergeant majors, and brigadiers.

        Wikipedia’s got lots on the subject.

      2. Minor note: Dr. Benjamin is not an admiral in the Navy, and I can find no mention of her ever serving in the Navy. The Surgeon General is the head of the United States Public Health Service Commissioned Corps, one of the seven uniformed services of the United States (Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service CC, National Oceanic and Atmospheric Administration CC). The position carries the rank of Vice Admiral (three star). The PHS and NOAA Corps both use uniforms similar to the Navy but with different insignia.

  3. So, is the overall theme of this post that Solicitor-General Kagan is a run of the mill legal administrator, but we should still be somewhat grateful that President Obama didn’t nominate someone who would be ungodly awful?

  4. I saw this cross-linked at Volokh. I have a big problem with the nomination. I must be the only damn person in the country who took a look at the records for the DPC under Clinton. As far as I’m aware of, Kagan is the first person who has spent time at the DPC to nominated for a spot on the Supreme Court. Under Clinton she was the right hand of Bruce Reed. I’d like to make a number of points as I find this to be her “achilles heal” rather than the anti-military issue at Harvard.

    I’d like someone to explain why people shouldn’t be concerned with at SCOTUS nominee who worked in the DPC.

    a) What is the Domestic Policy Council?
    The Domestic Policy Council is responsible for managing and coordinating Domestic Policy. This pretty much means, they carry out the President’s agenda. In the Bush and Obama White House it appears the position kind’ve morphed into Senior Advisor to the President. Who was the Senior Advisor to Bush? None other than Karl Rove. Who are the Senior Advisors to Obama? David Axelrod, Valerie Jarrett and Peter Rouse.

    b) What are the implications of Kagan being on the DPC?
    Again, I think I’m one of the few people who attempted to look through the records released by the Clinton library. I actually only have had time to look at 1,300 pages of the 46,000 that were released. The problem with her being on the DPC that her role wasn’t strictly as a lawyer. I’d really like to know why she ended up on the DPC, rather than in some type of legal position (OLC?). She was involved in all sorts of policy decisions and implementations. Worse, she was in the loop on the type of discussions like “How do we make ourselves look good vis-a-vis Republicans?” Additionally she ghost-writ some of Clinton’s media appearances and other public appearances.

    Ghost-writing? Don’t believe me? Go to the Clinton library records and look up Box 036-001, POTUS Press Conference-Meet the Press November 6, 1997. Go to page 21 and see her markups.

    Additionally, some in the media have put forth that she was a centrist because she supported the Daschle Amendment. However, there is another memo among the papers, Box 001-005, page 24 which references; “letter may be helpful to get D to win, if he doesn’t win, there may be landslide toward Santurum.” I think also in that same box, on page 21 is another e-mail from a subordinate. It says something like “talked to a reporter, what I said, as you advised… thanks for the help.” Kagan was doling out talking points.

    c) Still, implications?
    Okay. The implications are… just like Karl Rove or David Axelrod; someone who is a close advisor to the President isn’t soley there for the good of the country; they are working to make their party look good. It is clear Kagan has the trail of a Democratic partisan. This raises the question, if she was involved in policy issues like immigration, gun control, tobacco regulation, heaalth issues, and other issues; won’t this compromise her jurisprudence? Certainly someone who actively worked at implementing policies will have clear conflicts of interest if those same policies come before her.

    For instance, 064-008, Welfare-San Diego Issue (incidently there is an interesting e-mail on page 4 with another advisor having to go to the Oval office). The San Diego issues is basically a county wanted to report illegal aliens getting foodstamps. The White House was involved in attempting to persuade San Diego not to, even though it appeared there was no reason they couldn’t. Does anyone doubt Kagan already has her mind made up on the Arizona law? What’s ironic is that I suspect and would like to know Kagan’s role in whether the FDA could regulate tobacco. Why? Because in the immigration discussion she argued for a very narrow interpretation of Congressional intent. However, to justify regulation of tobacco, a broad interpretation of Congressional intent was used.

    It appears her legal philosophy changed in order to fit the outcome that most backed her policy.

    I’ll leave with just one more example of Kagan’s role in the White House. Box 042-012 Tobacco Press. Can Bruce/Elena take a look at these press issues? McCurry needs before his briefing.

    Why was a lawyer of great intellect used as a policy adviser?

    d) Kagan’s Role is clear
    From the first batch of documents, Kagan’s role is clear. She worked as part of a Democratic political machine, working to further the goals of Democrats as a Washington insider. She did not work as a lawyer; although she may have given legal advice from time to time, it appears she was mostly an advisor and someone who worked on getting good press and communications. I don’t doubt that her managing skills are great, that she possesses a great intellect, and all that other stuff. However, she would be the first person in such an advisory role to go on the court; and she may be ruling on some of the things that were implemented under Clinton or similar items of importance. I think this raises a number of questions for the hearing.

    e) Bruce Reed’s Standard
    Additionally, and even more ironic is that she worked for Bruce Reed, who was used to attack Harriet Miers during her nomination process. Chiefly I believe it was pointed out by Miers’ friend that “if conservatives knew how she’ll vote, they wouldn’t be made” or some similar quote. Miers was attacked due to her personal ties to Bush and that statement, as well as her lack of experience. I see the same holes for Kagan, in fact it almost appears she was given the Solicitor General job to overcome a charge of “no Supreme Court experience”. Miers and Kagan suffer the same problem of being too close to the President, and not having enough experience.

    The Supreme Court’s role is to decide “cases and controversy’s”, yet Kagan has not been dealing in cases and controversies for quite awhile. I think it is unfair for her to assume she is going to be in the tank for Democrat’s, however I think it is fair to question her experience as a Democratic policy maker/advisor. One would think selfishly she wouldn’t want her legacy to be known as “Supreme Court hack”; the irony is however Bruce Reed said that exactly about Justice O’Connor.

    That still doesn’t answer the question of why people should be so accepting of a nominee who spent considerable time working on and advancing Democratic goals, and why/if they would overturn policy that furthered their goals.

  5. I make no claim as a historical scholar, but I grasp that President Obama’s appointment of Elena Kagan is a recap of the 1930’s, when FDR appointed obsequious, pliable rubber-stamps to the Supreme Court who wouldn’t challenge his far-reaching programs. It doesn’t help that Kagan is an Obama fangirl groupie, in awe of his wonderfulness.

    Better Kagan than Cass Sunstein. Better Kagan than Goodwin Liu. Better a kick in the groin than a poke in the eye with a blunt stick. Whatever.

  6. Here’s an interesting link, Bruce Reed who Kagan was his right hand while at DPC:

    1) He leads with a story of Tim Russert asking Rahm Emmanuel a question. The irony is that now; with the release of the documents we see that Russert scripted questions with the POTUS (with answers ghost-written by Kagan); why wouldn’t Russert have scripted questions for Rahm Emmanuel (incidently who also was part of the Clinton Insiders).

    2) He writes this:
    “”Obama points out that like litmus tests, arguments over “framing” and labels are beside the point. Instead of striving to be pure or predictable, Democrats need to be bold and unorthodox. That means being willing to “innovate and experiment with whatever ideas hold promise,” and giving voters the benefit of “a real and authentic debate about the issues that matter.””

    You want to talk about innovative and experiment? Here’s an innovative idea. For the Supreme Court nominee, contract with some of the networks and have some type of “Supreme Court Justice Idol”. No, I am not kidding. Democrats no doubt have a short list, so have 3 of them (Say Merrick Garland, Diane Wood, and Elena Kagan) have some type of competition on TV. They could do this over a number of nights. The first night would be something like, “Are you smarter than a Republican Senator?” where they take questions from the ranking members ala an actual confirmation hearing. The second night they would have some type of advocates hearings where people like the POTUS or others advocate why this person would be a good SC Justice. The third night they have questions from the audience. Afterwards there’s some period where people can go to the phones and vote… and whoever wins gets unanimous vote out of committee and presumably unanimous vote on the floor.

    If the parties did nominations in this manner it would guarantee an up or down vote, no? Also would provide for a great diffuser to the filibuster.

    3) This is what Mr. Reed says about Miers:
    (From WAPO) “As Bush’s staff secretary, she was known to correct spelling, grammar and even punctuation errors in memos to the president. But she has no judicial experience and not much appellate experience.”

    “It’s bad enough that John Roberts was confirmed without revealing his judicial philosophy. It’s worse that all we know of Harriet Miers’s views is this Post quote from her sometime beau, Texas Supreme Court Justice Nathan “She’s a Terrible Cook” Hecht: “I know what her judicial philosophy will be, and when [conservatives] find out what this president knows about Harriet, they are going to be happy as clams.”

    Harriet Miers has never been a judge, and probably has no judicial philosophy. John Roberts may be hiding his, or may not have one himself.”

    “The White House has an obligation to release every document that Harriet Miers has written, edited, or let go by without a mark.”

    4) This is Mr. Reed’s initial reaction:
    The president’s nominee, Harriet Miers, will be far from the first hack on the court. In fact, the justice she is nominated to replace, Sandra Day O’Connor, is one of the leading hacks in court history.

    In terms of legal credentials, Miers is no John Roberts. She has never served on the bench. My guess is that she hasn’t argued a case before the Supreme Court. She probably didn’t even join the Latin club at SMU.

    But Bush didn’t pick Miers because of a nationwide search for legal talent. He picked her because she’s the best lawyer within 100 feet of his office. So, the fair question to ask about Harriet Miers in the coming weeks is not how good a lawyer she is, but how good a hack?

    It’s all documented for anyone in the media to look into and ask questions as to if Bruce Reed would like to further comment on Kagan.

    5) I have no qualms about Kagan’s scholarship or intellect; nor her management. There is simply the problem that she spent so much time dedicated and working on policy. I don’t buy that someone who works in the Executive Office of the President isn’t a policy advocate; its the fact that she had a partisan role in the office. Certainly there are others who took political appointee jobs like US Attorney; but the reach of an attorney is limited; they don’t push and set policy, they simply handle the cases. Kagan was intimately involved in *setting policy*. Furthermore the policy was carried out in a way to boost the interest of one party.

    If you look at her record, Kagan is a smarter Miers; if Bush was smart enough to put Miers on as the SG in 2004, perhaps she would’ve made it onto the high court.

    I’m sorry I have to rant and rave like a conspiracy theorist on a blog; but these questions need to get answered. I haven’t even seen any evidence that others are reading the Clinton Papers (oh, we’re getting 80,000 more on Friday!).

  7. … and I must caveat all my complaints unfortunately with, I don’t know that her time on the DPC disqualifies her, however she needs to answer that during her hearing. Why is it that we limit the political activities of career federal employees? Shouldnt’ judges be held to the same standard?

    Of course the dual-edge of the argument is that of course she’s going to behave differently.

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  9. “Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief.”

    Those conservatives who are more mainstream and support some forms of big government, have nothing to worry about. Libertarians on the other hand do…..whether it’s her record on civil liberties issues, or economic issues there is nothing good about this nominee for libertarians. Diane Wood who would’ve probably recieve a worse reaction from both groups would have atleast satisfied libertarians on issues dealing with executive power, and habeas corpus rights.

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