Nice work if you can get it

There are niches in the world intellectual life where having an extensive record can be a net negative to your advancement prospects, because a record provides tangible evidence of your actual abilities or views. It can be better to have a reputation for brilliance substantiated only by the testimony of well-positioned others or, as perhaps in this case, uncertainty about what you think can be helpful.

John Quiggin should have a named chair. There must be somebody reading this who can help him out.

Actually, she’s published a bit more than that:

http://scholar.google.com/scholar?q=elena+kagan&hl=en&btnG=Search&as_sdt=80000002

I count 7 articles.

But this confirms that law schools have very low tenure standards–if people think you are “brilliant” you don’t have to publish much.

Tim – don’t forget that law reviews are run by law students. A good friend, who has been dean of 2 of the better, though not top rank, American law schools, pointed this out to me. Peer review standards are significantly lower in law journals than in many scholarly fields.

I think academics have a tendency to overestimate the importance of scholarship. The question of how she managed to get appointed Dean of HLS is fairly easily answered; she was Associate WH Counsel for four years, and she was Deputy Director of the Domestic Policy Council during that time as well. Presumably Summers got to know her and was impressed enough to offer her the job. Hard to knock it after she did such a stellar job as Dean.

One can seemingly get very far in legal academia on the basis of one or two brilliant articles. The only comparable case I can think of in my field (American history) is the colonial historian John Murrin, and he had an apparently brilliant, groundbreaking dissertation/book manuscript that essentially became incorporated into the literature without ever being published as a book.

But in Kagan’s case, the most that I’ve ever seen said for her articles is “very well received.” Nobody even claims that they’re groundbreaking. To the extent that promotion on this basis is not all that unusual in legal academia, it is that unusual when we’re talking about the Supreme Court. Kagan has no career on the bench, and she is not a particularly distinguished legal academic. She’s Harriet Miers, with a D after her name. And better friends (and academic credentials) of course.

Even granting for the sake of argument that Kagan is (like Alito and Scalia, e.g) in all likelihood more intellectually capable than Miers (though this too is largely a guess), it’s still outrageous that she’s the likely nominee. And it’s more outrageous that, unlike Miers’s, her nomination will likely be accepted by leading public voices on her side of the political divide.

We are truly reaping the harvest of the politics of lesser evilism here. For the better part of two decades now, “progressives” have voted for Anything-but-the-GOP. We’ve compromised on issue after issue, always terribly aware that the Republican alternative was worse (and it really was, I should add). One of the chief arguments for this political behavior has been the Supreme Court. There’s no question that McCain would have nominated another justice to join the Court’s (far) right wing. But the best that can be said for Kagan is that she would probably (but only probably) not be such a justice.

That a Democratic President with a Democratic majority in the Senate cannot be counted on to nominate a Supreme Court Justice who does not move the court to the right (especially given that this Court’s “left” was defined by a Rockefeller Republican like Stevens) should indicate to all the utter ineffectiveness of the so-called “left” (heavy quotations marks there) in American politics today. That this so-called “left” will probably respond with a collective “thank you, sir, may I have another?” helps us understand how we got to this point.

There are probably several factors. First, Kagan probably had excellent law school grades. Law school grades carry much more weight than grad school grades (you have to screw up to get bad grades in grad school, whereas most law schools have fairly strict curves). Second, she had practical experience in government, which carries weight with law schools. Except maybe for economists, there is no equivalent in other academic fields.

Kagan went to much better schools and has a much better resume than Miers. For elitists like me, there’s no comparison.

“How does someone whose vita contains “three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces”, and who had apparently never appeared in a courtroom before last year, get to be Dean of Harvard Law School and then US Solicitor-General[1]?”

They get there because working connections is often even more important in legal academia than it is in other places. It just usually isn’t quite *this* obvious, and it usually doesn’t get you to the “talked about for the Supreme Court” level without other practical experience being a judge that can be looked at.

I haven’t read Kagan’s articles, but no one has yet mentioned that a “big” law review article is typically quite long and carries a huge scholarly apparatus, or at least the appearance thereof (i.e. lots of long footnotes). Which doesn’t necessarily say anything about an article’s quality or innovativeness, of course, but does suggest that it takes a fair amount of work to write a publishable one (which may in turn go part of the way toward explaining why people get tenure at well-known law schools with one or two articles). At any rate this has been the case with U.S. law schools for quite some time, as far as I’m aware, so what strikes JQ in the post as so surprising and unusual is really not surprising at all.

As for Miers, take a quick glance at the chapter on her failed nomination in Jan Crawford Greenburg’s Supreme Conflict. Kagan would not be Miers even if Kagan had never published a single word.

A Google Scholar search turns up two pages of citations, most of them after 2000, for Condoleeza Rice.

“But neither (Miers or Kagan) has a record that should remotely qualify her for a nomination to the Supreme Court.”

I disagree strenuously. Scholarly excellence (as opposed to academic excellence in the sense of good grades from a good law school) has never remotely been a criterion for Supreme Court membership. So even granting that Kagan is somehow not quaified for a Harvard professorship, that says nothing about her Supreme Court credentials.

Personally, I would like to see a broader range of experience on the Supreme Court. It would be better if partners at top firms, deans or professors at top law schools, high-ranking elected officials etc. were routinely considered. Unfortunately, partisans on both sides have trouble evaluating the political reliability of people in those positions, which militates against their selection.

And lest I concede too much, I still disagree about Kagan’s qualifications for a Harvard professorship. The plain fact is, law schools have different career paths than graduate schools, though there has been some convergence over the past several decades.

Scholarly excellence (as opposed to academic excellence in the sense of good grades from a good law school) has never remotely been a criterion for Supreme Court membership.

I agree, y8i. Scholarly excellence should not be a requirement for a seat on the court. But there’s nothing else in Kagan’s record that qualifies her, either.

She was just taken to the woodshed by a majority of the current court for a first-amendment related brief she wrote as Solicitor General. Her most mentioned achievement as Dean of Harvard Law School was hiring an unusually large number of conservatives (and she has been criticized for hiring virtually no women and only one non-white faculty member). And she has a scholarly record that, as has been noted, is neither distinguished nor philosophically revealing.

You’re not arguing that good grades from a good law school plus powerful friends should be enough, are you?

Ken Wilson made it to full professor at Cornell without publishing much, simply for being that smart. A good call, as it turned out.

“I disagree strenuously. Scholarly excellence (as opposed to academic excellence in the sense of good grades from a good law school) has never remotely been a criterion for Supreme Court membership. So even granting that Kagan is somehow not quaified for a Harvard professorship, that says nothing about her Supreme Court credentials.”

That is true, and I agree with you about drawing from a broader group of people. But the problem is that she doesn’t have other typical qualifications either nor does she have atypical qualifications that are nevertheless excellent in their own field. She has never been a judge. Her actual record as an advocate in court is very short and undistinguished. She has a had some medium level political experience, and was the dean of a high profile law school with the much talked about characteristic of her being able to raise lots of money [which is a weird thing to praise a Harvard dean for anyway…it is Harvard, of course they can raise lots of money].

Of course, the right will be more excised about whether or not she’s a lesbian.

There are three separate issues being considered here.

1. Whether Kagan’s scholarly work qualifies her for a Supreme Court seat. That is a silly question, since scholarly work is not a qualification for the position. Additionally, I note that scholarly work is not a qualification for the Solicitor General position, though high-level policy experience is.

2. Whether Kagan’s overall resume qualifies her for a Supreme Court seat. I don’t know enough to have an opinion on that, although I do know enough to disagree with some people’s apparent criteria.

3. Whether Kagan’s scholarly work qualifies her for a Harvard law professorship. Look, life is unfair. Law schools operate differently from graduate schools. There are fifty or so people produced each year–basically, law review editors at the top five law schools–who can obtain tenured law school professorships with little additional work. (Most of them, of course, have other career goals.) So far as I know, Prof. Quiggin wasn’t ever one of those fifty people. It is also possible to work one’s way up the law school academic ladder with high-quality published work, if you have lower-quality credentials (Brian Leiter has written about this, as I recall), but some people don’t have to.

this clearly calls for a “I have more publications than Elena Kagan and nobody’s gonna nominate me for the Supreme Court!1!1!” facebk group……

Apropos her actual record at the Supreme Court in Citizens United:

http://robertlindsay.wordpress.com/2010/04/24/elena-kagans-performance-in-citizens-united-vs-the-united-states/

As far as her credentials to teach law…

The purpose of law schools, for the most part, is to turn out professionals not to create scholarly work. Scholarly work is nice and schools care about that too but its not the end all as it seems to be in other graduate schools. While it varies from field of law to field of law a bit (con law professors in general need to publish more then professors who are specialists in tax, securities regulation, etc…), in general, as long as the basic qualification are there (Yale, Harvard, Stanford, Columbia, Chicago, law review, COA/ Supreme Court clerkship, etc…) professional success carries the same amount if not more weight than scholarly work.

Harvard Law Review –>Supreme Court Clerkship –> associate at Williams & Connely by itself is usually enough to get a crack at teaching, add in Associate White House Counsel and you are golden…

Sorry, that should have been:

In the meantime, here’s another, more summing-up, article:

http://www.salon.com/news/feature/2010/04/15/kagan_as_solictor_general

LFC,

Your point, which was also mentioned elsewhere, is well taken, but win or lose (a case) I do take the point that she has a tin ear for the people’s side, which would fit her in with the rest of Obama’s cast of characters. At some point, long past overtaken, in my view, one wonders where bi-partisanship leaves off, and throwing the game comes in.

The problem is not just Citizen’s United. In U.S. v. Stevens, the animal-cruelty video case, Kagan argued that the First Amendment allows for a cost-benefit analysis of speech content:

Where the First Amendment value of the speech is “clearly outweighed” by its societal costs, the speech may be prohibited on its content.

The Court’s 8-1 majority opinion against the the administration (and the law in question), written by Roberts and signed by Ginsburg, Breyer, Stevens, and Sotomayor among others, noted the following after quoting that passage from Kagan’s brief:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.

(h/t Glenn Greenwald)

The point is not which side of these cases Kagan argued (which was dictated by her job and may really not represent her views), nor is it the effect of the quality of her oral arguments or written briefs on the outcome of these cases.

The point is that she has had a career with relatively little experience directly relevant to being a Supreme Court Justice, and even less public record of that experience.

Especially in light of the thinness of her public record, her poor performance as Solicitor General before the Supreme Court is extremely troubling.

I repeat what I say above: I’m still waiting for someone to point to something in her record that suggests that she has any business being nominated for a lifetime appointment to the Supreme Court.

This has been a useful thread — I feel much worse about Kagan as nominee than previously.

Which is a pretty big hint that she’ll get the nod.

Outside of a few extremely productive scholars most of us can name off the tops of our heads, very few legal academics publish much. (Is there another academic field where you can write a [single] “tenure piece” and largely exhaust your obligation to produce scholarship?) And some of the more prolific publish minor variants of the same article. Some of the more modest work is of some value to working stiff lawyers in the trade, and not much of the work with greater pretensions matters to them or to anyone else except the tenure committee. Bad food — and such small portions.

“How does someone whose vita contains “three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces”, and who had apparently never appeared in a courtroom before last year, get to be Dean of Harvard Law School and then US Solicitor-General[1]?”

Umm, people get chosen for political jobs for political reasons?

No one’s suggesting that Jack Straw is Minister of Justice and Lord Chancellor on the basis of his legal expertise are they? Vera Baird didn’t become Solicitor General purely on the basis of her being a QC did she?

Yes, I know the English system is different but really, the idea that political appointees are selected on other than political grounds seems a tad naive.

“How does someone whose vita contains “three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces”, and who had apparently never appeared in a courtroom before last year, get to be Dean of Harvard Law School and then US Solicitor-General[1]?”

It in not WHAT you know. It’s WHOM you know.

Once you admit those exceptions, it’s balancing tests all the way down.

Well, that was Kagan’s argument. And eight Justices on the court–including all the “left” and most of the right–rejected it as dangerous and startling.

I agree with the Court.

Just because one limits a right by some sort of grave-and-present-danger test does not mean that one accepts a more general cost-benefit-balance test as a limit on that right.

Permit me to doubt that the Solicitor General of the United States actually writes briefs. She has several hundred attorneys to do that sort of thing for her.

The first draft of a Supreme Court brief is produced by one of the 17 “line lawyers” in the SG’s office, working to a greater or less degree with the lawyer who handled the case in the Court of Appeals. (Each of the litigating divisions has its own appellate section to do this work.) Then a deputy SG (there are four of them) will work the brief over. Eventually, though, the SG has to read it and sign off on it; how much editing he or she does no doubt depends on the incumbent and the case.

But in a case that the SG is arguing personally, by the time the argument rolls around she had damn well better know it just as well as if she had written the whole thing herself.

It is no doubt true that the Citizens United result was foreordained. But that doesn’t make the reports about Kagan’s performance any less disturbing, because the reputation of the SG’s office for total competence is critically important.

As a practicing lawyer, I’ve long wondered about the whole “legal scholarship” idea. I think it’s mostly a masturbatory racket.

I haven’t cracked open more than one or two law review articles in the last 20 years and I doubt I’m alone. Can any other purportedly academic field of study say the same? (Do professors of accounting have an obligation to publish?) Also, last I checked there was no requirement that the author engage in any primary research; although it would not be clear what, exactly, law professors are qualified to do research in. Finally, the publication standards are ludicrously low; law students supposed check the cites for accuracy, but these students (having been one myself) are in no way competent to determine whether the substantive argument has any merit. This problem is magnified if the article purports to cross disciplinary boundaries and develop new historical / sociological / scientific data.

Ralph Nader gets disqualified on the power-hungry lunatic grounds, surely?

Outside of a few extremely productive scholars most of us can name off the tops of our heads, very few legal academics publish much.

Outside of a few extremely influential exceptions most of us can name off the tops of our heads, very few people become Supreme Court justices.

@54: The shouting-“fire”-in-a-crowded-theater hypothetical demonstrates the First Amendment’s lack of applicability in cases of deliberate, malicious, materially and gravely harmful deception–see also libel and slander, perjury, fraud, etc. The First Amendment does not create a general blanket right to lie that protects one against civil or criminal charges for injuries caused by deception.

It is a damn shame that brilliant legal minds like Kathleen Sullivan and Pam Karlan get passed up for mediocrities like Sotomayor and Kagan. It couldn’t be any clearer that Obama doesn’t really care about putting the best minds on the bench. The really frustrating aspect to these picks is that the political payoff for Obama will be so piddling when measured against the non-political benefits that could have been gained by nominating some some of the exceptional lawyers that were available.

@62: As Glenn Greenwald cogently points out, back in January 2009 no one thought that Obama might conceivably make an appointment that could move the Court to the Right. We’ve been sold out again.

I haven’t read Greenwald’s postings on this, but why rush to assume the worst? One never knows exactly what will happen when a Justice gets on the Court and has been there a while. You can’t complain both that Kagan’s record is too thin/writings too sparse and that her nomination is a “sell-out” b/c she will likely move the Court to the right. The very fact that her record is thin means that we don’t know. No one thought A. Kennedy would turn out as he has in some key respects. No one thought Souter would turn out as he did. I find this rushing to judgment and cries of “sell-out” misplaced.

And perhaps it’s not entirely irrelevant that, according to a lengthy profile in the NYT, Kagan’s senior thesis at Princeton was about the history of American radicalism, specifically (I hope I’m remembering the title correctly): “To the Final Conflict: Socialism in New York City, 1900-1933.”

@chris: You’re missing the central point, which is that shouting “fire” in a crowded theater is lying. The First Amendment does not create a blanket protection for malicious lying. This is why laws against libel and slander, perjury, fraud, etc. are constitutional. And so, likewise, if I shout “fire” in a crowded theater in which there is in fact no fire, there is a panic, and a child is trampled to death, when the child’s parents sue me for wrongful death I cannot use a Free Speech Clause defense.

anon – try a PubMed search if you have access to it.

Angela Davis!

Too old. But Obama should’ve brought her out, announced it, then said, “ha, GOTCHA FoxNews! Angela, please tell Elena to come meet the reporters.” That would be the coolest presidential trick ever.

“Ralph Nader gets disqualified on the power-hungry lunatic grounds, surely?”

This also disqualifies anyone who takes the job or anyone who has ever thought of running for President. (Nader hatred is understandable to me–helped Gore lose, but the whole power-hungry thing is just weird. As for lunatic, well, there again we’re talking about the whole class of people who run for President.)

A little-known aspect of Kagan’s tenure as dean of HLS was her renovation of Harkness Commons, a cafeteria and gathering place for students. In order to open up its somewhat cramped spaces and make it more amenable to the flow of foot traffic, Kagan’s aggressive campaign destroyed parts of this architectural landmark and sent away or covered over some major works of art inside it.

Does this have any relevance to her confirmation? If you think it’s just about her taste in art, it doesn’t. If you think it’s about her attitude to history and precedent, or her regal sense of her own judgment, maybe it should, and will. (Yeah, right. Who am I kidding?) In any case, I’d like to imagine that once she is on the court, Breyer, a fan of modern art who helped select artist Ellsworth Kelly to decorate a new federal courthouse in Boston with abstract color panels, might take her to task over coffee, especially since part of Kagan’s campaign involved covering a beautiful mural of abstract color tiles by Herbert Bayer with velcro-attached squares of beige cloth for no good reason (after preservationists stopped her from knocking it out altogether). By way of background, here are three paragraphs from a corner of HLS’s own web site:

“Harkness Commons was designed by Walter Gropius and The Architects’ Collaborative in 1950…. Though often the subject of criticism and complaints by the law students who are the primary tenants, it has strong supporters within the architectural community.

“When it opened, Harkness contained many works of art designed specifically for the building by friends of Gropius… Herbert Bayer designed a large mural pattern of square tiles, a transparent screen at the head of the Commons ramp, and a mural in shades of green in the southwest corner of the second floor; Josef Albers designed an abstract pattern using the brick module at the back of the Commons fireplace; Jean Arp cut out a series of free shapes of plywood and placed them on opposite sides of the dining room.

[…]

“A major renovation of “the Hark” in 2004 was successful on almost every front, but it was not kind to the art. Bayer’s mural and Arp’s wood sculptures were sent to the Fogg Museum. His tiled wall that faced the ramp and Albers’ fireplace were covered over.”

“Having written[1]”

in Hastings Communications & Entertainment Law ranked #258 in 2009

in UNSWLJ ranked #789 in 2009

and

in Australasian Journal of Natural Resources Law and Policy ranked #1228 in 2009.

I’m sure you’re quite the expert on bottom of the barrel law reviews, Professor Quiggin. You might want to hold your tongue until you’ve published in a real law journal.

“Finally, the publication standards are ludicrously low; law students supposed check the cites for accuracy, but these students (having been one myself) are in no way competent to determine whether the substantive argument has any merit. This problem is magnified if the article purports to cross disciplinary boundaries and develop new historical / sociological / scientific data.”

Pity your law review had such low standards. Did you, perhaps, edit Hastings Communications & Entertainment Law? Most top journals have over 50 editors. Among this group you will typically find several talented economists and statisticians. Historical methodology is easily evaluated.

The real virtue of student-edited journals is that they force scholars to make their work accessible to a large audience of intellectually curious readers. Legal scholarship is democratic. Can you say the same about your work?