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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14 thoughts on “What We Can Infer about Kagan

  1. Can one even make an argument that a more radical nominee would differ one bit with Kagen on matters that come before the Court? I see no evidence to support Cole’s argument that we could have gotten a nominee that was worse than Kagen. There is no evidence that Kagen’s opinions will differ in any detectable way from Cole’s imaginary much worse nominee.

    1. Yes, one can make such an argument. Since I know all of the potential nominees publicly considered, I am not speaking from imagination. And this is not to cast aspersions on the abilities of the other candidates; they are all quite gifted. Judge Diane Wood, for example, is perhaps the most intellectually formidable proponent of extensive economic regulation and anti-trust policing. She would have been an incredibly influential force on the court, but less of a “bridge builder” with the right. Kagan is not the dream nominee of the far left. She is perhaps more of a politician than the others, and I think she was chosen precisely for this quality. We conservatives and libertarians are not likely to love any of the President’s nominees, and I did not suggest that we should. But, as I said, we really could have done much worse. If we cannot live with that, then maybe we ought to go out and win an election.

  2. Jim, Roger –

    What do you think about the idea that the President ought to get a significant amount of discretion in choosing his nominee?

  3. I’m bemused by the idea that the higher you ascend in academic prestige, the “ever-further leftward” you are. The academic establishment is part of the establishment, and that puts a limit on how far leftward you can go. (Case in point, Kagan’s position on Israel, which is certainly not identified as a “Left” position in academic circles.) In my experience (and FWIW I am an academic) you are far more likely to find outspoken Marxists, third world radicals, and Afrocentrists at second and third-rank institutions. And of course in economics the pattern is precisely the opposite–the most prestigious departments tend to be identified with the right. Do you have any evidence for this “ever-further leftward” theory?

  4. I can’t speak for Roger, Grover, but I believe in the separation of powers and in the jealous protection of each branch’s authorities against the other branches. That captures, I think, the Federalist‘s notion of limiting the spread of concentrated power because each branch challenges the power of the other.

    That leads me to believe that, yes, the President ought to have wide discretion in nomination, but the Senate ought also to have wide discretion in challenging the nomination. So I do not believe the Senate should merely defer to the President on this score. If that means that the Senate will tend to confirm or not confirm according to the wishes of its majority party, that is its right. Just as it is the President’s right to nominate people according to his own political or jurisprudential preferences.

  5. I wouldn’t give a President much discretion. Rather, I’d insist on nominees that show deference and felicity to the words of our Constitution.

    Sure, elections have consequences. But that shouldn’t mean the party in the minority can’t use whatever power it has to oppose the President and majority.

  6. Bill, there is a lot of evidence out there purporting to suggest what I claim. One principal source is Daniel Klein’s work. If you haven’t seen it, I recommend you have a look. He collects a lot of it here.

  7. Ilya Somin’s take at VC:

    “The bottom line is that Supreme Court justices wield great influence and serve for life. It is dangerous to give any one man unconstrained power to choose them. It is almost equally dangerous to give him unconstrained power to appoint anyone with appropriate professional qualifications, since the president can almost always find a technically qualified nominee who will reflect his views — even if those views may be seriously flawed or show excessive deference to the executive. The current confirmation process has many flaws. But one that gives the President largely unconstrained authority to pick justices would be worse.”

    Jonathan Adler’s take at VC: http://volokh.com/2008/09/13/will-conservatives-try-to-block-a-president-obamas-judicial-nominees/

    “While I doubt a President Obama’s nominees would be much to my liking, I do not think the Senate should reject a President’s judicial nominees on ideological grounds. Rather, I believe the Senate’s “advise and consent” role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

    As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a “check upon a spirit of favoritism in the President” and “to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we’ve seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge’s overall judicial philosophy. In my view, the latter is the better way to do it.”

  8. So it seems like two smart liberty-friendly folks can disagree. But I think that the original understanding of the Senate’s role should have a strong influence on how Senator’s think about their job during the process.

  9. And as a strictly political calculation, the Republicans should be prudent about how far they push. The public isn’t going to tolerate multiple rejections – so at some point they’ll have to accept the least worst option or they will eventually allow the President to nominate someone quite extreme that politically can’t be blocked. Moreover, the Republicans could use the hearings to educate the public about the proper judicial philosophy and use Obama’s poor nominees as a wedge issue in the elections.

  10. Thanks. I took a look at it, and I don’t think it bears the weight you seem to want to put on it. Klein’s 2003 study, which seems to be what most of his work was based on, was organized by disciplinary associations, not departments, so it really doesn’t say anything about whether more prestigious departments are further to the left. The California institution study does show a greater Democratic dominance at Berkeley than less prestigious institutions, but that doesn’t help much in determining whether one department is “further to the left.” Both Heath Shuler and Dennis Kucinich are Democrats. Overall, Klein’s work is pretty binary Democrat/Republican, Interventionist/Non-Interventionist. It may be fine on Left/right, but not so good at gradations within each camp. A department full of Keynesians may show as much support for interventionism as a department full of Marxists, but I don’t think there’s much question which is further left.
    In the case of Kagan, you also run into the problem that Klein’s work is oriented around departments that teach a lot of undergrads–economics, sociology, and history among others. Law schools and law professors are a very different culture.

  11. Perhaps a better question for those who would give the President wide leeway in selecting Justices is what would be circumstances for which a Senator should oppose a nominee? Adler suggests “necessary qualifications and temperament,” but what does that mean? Perhaps experience as a judge? Kagen doesn’t have any. A law degree? That isn’t a constitutional requirement. Temperament? That seems to touch on judicial philosophy.

  12. Bill, I appreciate both your thoughts, which are well taken based on the data Klein has available on the link I gave you. I will ask Klein directly whether he has, or is aware of, other evidence supporting the claim I made about there being a correlation between prestige of institution and relative leftwardness of its faculty. I will let you know what he says.

  13. Is an institution’s/department’s statism/leftism correlated with its position in the academic pyramid?

    I think that the Jim’s claim is basically sound, but I am not sure how strong the relationship is, or even what all the evidence says.

    Here’s what I know, off the top of my head:

    1. The following paper famously found “liberalism”more prevalent at the top, but, as I recall, I wasn’t too happy with the composition of “liberalism” as clearly statist: Lipset, Seymour Martin. 1982. “The Academic Mind at the Top: The Political Behavior and Values of Faculty Elites.” Public Opinion Quarterly, 46 (2), Summer: 143-168. These

    2. At the 2-year colleges, the “liberal” to “conservative” ratio does go down. This was a big point of Zipp and Fenwick’s criticism of some of my work. My response to them is here:

    Click to access LvCStinks.pdf

    The 2-yr colleges issue is also treated in the “By the Numbers” chapter in this AEI book:

    Click to access 9780844743172.pdf

    3. Voter registration results: Indeed, generally speaking, the more eminent in our set of 11 California schools, the higher the Dem:Repub ratio:

    Click to access cardiff_klein.pdf

    4. Bill Davis and I are doing a survey of economists that will help with this question.

    A good person to ask for further evidence on this would be April Kelly-Woessner: kellya@etown.edu. She and her husband Matthew have gotten in on the Rothman/Lichter survey of 1999, so she may know from that data.

    The questions deserves more investigation. If we established that leftism/statism is correlated with academic prestige, that fact would be useful in diagnosing statism.

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