Nice work if you can get it

by John Quiggin on May 9, 2010

This piece by Paul Campos makes the point, not for the first time, that Elena Kagan’s public record is so thin as to make it impossible to guess how she might decide as a Supreme Court judge. While this question is important, another strikes me.

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]? Even confining myself to law journals and popular pieces on legal topics, I could match that track record. I once even exercised a quasi-judicial function in my career as a regulator, which is more than Kagan has done.

In view of Kagan’s apparently inevitable promotion, can I put myself forward as her replacement? I guess the Harvard gig is already taken, but I’m sure I’d be a great Solicitor-General. All my friends say I’‘m “brilliant”, and have “many remarkable qualities”. Some will even go as far as “scrupulously fair-minded” .

fn1. For comparison, here’s the publication list for Kathleen Sullivan, reputedly the runner-up for the S-G job.

{ 86 comments }

1

Kieran Healy 05.09.10 at 12:03 pm

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.

2

John Quiggin 05.09.10 at 12:07 pm

I understand this as regards SCOTUS, but I didn’t realize Harvard was in this category also. Maybe if I scrubbed 97 per cent of my CV I could get that named chair I’ve been seeking in vain.

3

beamish 05.09.10 at 12:22 pm

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

4

Anderson 05.09.10 at 1:12 pm

I’m assuming that Kagan actually glows in dim light from sheer genius.

… Wikipedia btw relates the fact, which I’d not known, that she was the original nominee for the D.C. Circuit slot later filled by John Roberts.

5

maybe 05.09.10 at 1:13 pm

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.

6

Tim O'Keefe 05.09.10 at 1:39 pm

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

And what are the procedures/standards for getting published in a law review, anyway?

7

Roger Albin 05.09.10 at 1:46 pm

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.

8

weserei 05.09.10 at 1:48 pm

Her article “Presidential Administration” was extremely well-received in the admin law crowd, and a lot of people point to it when they talk about her appointment at Harvard Law School. It tells a very interesting historical story, but there’s really not much in it to indicate what kind of legal theories she believes in–there’s a lot of “this raises the interesting question of (x), which is in turn dependent on (y).” There are rumors that’s she favors very expansive views of executive power, but is there much to substantiate that?

9

Patrick 05.09.10 at 2:01 pm

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.

10

Patrick 05.09.10 at 2:09 pm

N.B. that wasn’t a defense of her possible SCOTUS nomination. I am neutral-to-hostile to that idea. But the idea that a record of great scholarship is necessary to become a law school dean is questionable at best. “Great scholar” and “great dean” have very different skill sets.

11

Ben Alpers 05.09.10 at 3:24 pm

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.

12

anon 05.09.10 at 3:48 pm

Actually, Roger, the standard of review at most law journals is significantly higher than anywhere you’ve published. How many hours of review does your shitty Elsevier vanity journal put into each article?

13

y81 05.09.10 at 3:49 pm

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.

14

Ben Alpers 05.09.10 at 4:03 pm

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

If I had to choose between the two of them, I’d pick Kagan for similar reasons. But neither has a record that should remotely qualify her for a nomination to the Supreme Court. “Marginally better than Harriet Miers because Princeton, Oxford and Harvard are better than SMU” is not much of an argument, in my book.

15

Sebastian 05.09.10 at 4:15 pm

“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.

16

Tim Wilkinson 05.09.10 at 4:21 pm

No surprise about Harvard Law School. IIRC, the incumbent Felix Frankfurter Professor was 3rd author in a handful of undistinguished articles produced many years ago, and apart from potboiling short book reviews, that’s the extent of his published academic work.

17

LFC 05.09.10 at 4:24 pm

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.

18

Ben Alpers 05.09.10 at 4:33 pm

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.

For those of us without Supreme Conflict at hand, care to offer an executive summary of what you see as the key points of difference, LFC?

(Just to clarify my position: I really don’t think that Kagan is as ridiculous a nominee as Miers was. But I also don’t think that’s remotely a high enough bar to qualify someone for the Court. I do think that, like Miers and for some similar reasons, Kagan would be a ridiculous nominee.)

19

bianca steele 05.09.10 at 4:42 pm

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

20

bianca steele 05.09.10 at 4:56 pm

Which is not a statement about race or a claim to admire Rice’s politics, only an observation about what it might take to build a reputation sufficient to get a high ranking university admin. position and a government appointment.

21

y81 05.09.10 at 5:00 pm

“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.

22

Bill Gardner 05.09.10 at 5:09 pm

not a statement about race or a claim to admire Rice’s politics, only an observation about what it might take to build a reputation sufficient to get a high ranking university admin. position and a government appointment.

See McGeorge Bundy.

23

Ben Alpers 05.09.10 at 5:11 pm

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?

24

LFC 05.09.10 at 5:18 pm

@Ben Alpers:
My recollection from a quick race through Greenburg a while ago is, among other things, that: (1) Miers, although she had been a partner in a big Texas law firm, was very involved in law firm administration, moreso than in litigating important cases; in that respect her practical legal experience, supposedly her strength as a nominee, turned out to be thinner than some thought; (2) Miers’ lack of familiarity and comfort with constitutional law was such that Greenburg compares Miers’ trying to get up to speed for the Senate hearings with someone’s attempting to become fluent in a foreign language in three weeks. (She also alienated Arlen Specter, claiming she had told him one thing about her views on abortion rights etc in a private meeting after he had told the press something else.) I ended up almost (not quite, but almost) feeling sorry for her.

By contrast, Kagan has argued before the Supreme Court as Solicitor General, obviously is more comfortable with constitutional law, and just seems to be in a different class than Miers. I would prefer another nominee (say, Judge Diane Wood), but I don’t see Kagan as a “ridiculous nominee”. ‘Not left-leaning enough’ and ‘not a big paper trail’ are not the same thing as ‘ridiculous’.

25

Joshua W. Burton 05.09.10 at 5:50 pm

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

26

Ben Alpers 05.09.10 at 6:08 pm

‘Not left-leaning enough’ and ‘not a big paper trail’ are not the same thing as ‘ridiculous’.

Again, to clarify:

1) The objections that you refer to are better stated as “unclear judicial philosophy with a record that raises concerns that she might be further to the right than the Court’s current centrist ‘left'” and “not a sufficient paper trail.”

2) However, what would make the nomination ridiculous IMO is that nothing about her record is sufficiently distinguished. She has held some high positions in her profession and in public life: Dean of one of the nation’s great law schools, Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council under President Clinton, and Solicitor General under President Obama. Of course you could say the same thing about, e.g., Alberto Gonzales. What about Kagan’s performance in any of these positions makes her a good candidate for the Court? Or are good grades, good friends, and sub-cabinet level White House gigs and/or administrative posts at good law schools enough?

27

Sebastian 05.09.10 at 6:23 pm

“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].

28

LFC 05.09.10 at 6:54 pm

There may a broader issue lurking here, one that is also flagged by Greenburg, namely: the range of people, in terms of background and types of experience, that presidents consider for Supreme Court nominations has narrowed over the last 20 or so years, whether b/c the nomination process has become more and more politicized/partisan or for other reasons. From this standpoint, Kagan arguably appears less as an aberration and more in line with other recent picks, since — even if her performance in her jobs has been undistinguished (and I don’t know whether it has been or not) — she has held the “right” jobs, gone to the “right” schools, and is sufficiently familiar with Washington to be able to navigate the confirmation process smoothly.

In the past, presidents could and did consider practicing lawyers who had never been appellate court judges or Solicitors General or constitutional or administrative law scholars — Lewis Powell is an example — but now such people don’t even get considered. Senators expect someone who can confidently answer — or at least artfully evade while appearing to answer — specific questions about hot-button precedents as well as issues like federalism, executive-legislative branch relations, and so on. This favors people who have some prior familiarity with these issues either by virtue of having been a federal court judge or a constitutional law professor or, as in Kagan’s case, having held reasonably high-level government jobs. Thus people who might make good Supreme Court justices but don’t fit this profile tend not to get considered. It’s doubtful that someone with Souter’s pre-Court resume, for instance, would be considered by a president of either party today. Ditto for O’Connor. And someone with Powell’s background wouldn’t even be remotely considered. The point is not whether you happen to have liked Souter, O’Connor or Powell (I was not a fan at all of the latter two), but rather that presidents are constrained in advance b/c the range of what is seen as the practical available options is much narrower than it used to be.

29

Chris E 05.09.10 at 7:41 pm

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

30

Daniel 05.09.10 at 8:14 pm

>>In view of Kagan’s apparently inevitable promotion, can I put myself forward as her replacement? I guess the Harvard gig is already taken, but I’m sure I’d be a great Solicitor-General. All my friends say I’‘m “brilliant”, and have “many remarkable qualities”. Some will even go as far as “scrupulously fair-minded” .

If done correctly, the job of a supreme court justice is not that hard. You and , say, 3 million other Americans are perfectly qualified to do the job. Really. What is there to the job? Case comes before you, summarize the case and case history, research precedent, make a preliminary finding, check to see if it contradicts the Constitution as maximally agreed upon. In light of the above, make final decision, outlining your reasons, all done with the assistance of a staff of first class scribblers. Lunch time. See, you can do the job. So can I. It is not like programming C++ or doing something hard.

Why do we only nominate lawyers for the Supreme Court?

31

John Quiggin 05.09.10 at 8:18 pm

“and carries a huge scholarly apparatus, or at least the appearance thereof (i.e. lots of long footnotes)”

Having written[1] one of these law[2] review[3] articles[4], I know the score.

fn1. Writing is a process of producing marks on paper corresponding to speech [Obscure source, loc cit, plus lengthy digression on whether typing, blog commenting, FB chatting is writing, libel vs slander etc]

and so on …

32

Alice de Tocqueville 05.09.10 at 8:39 pm

And, if I’m not mistaken, she argued the LOSING peoples’ case in Citizens United case! Hello!
(If I’m not mistaken, link to follow.)

33

y81 05.09.10 at 8:40 pm

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.

34

nick 05.09.10 at 8:42 pm

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

35

nick 05.09.10 at 8:42 pm

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……

36

nick 05.09.10 at 8:43 pm

your commment software spoils my already lame jokes by editing out my leetspeak: WTF, Crooked Timber, WT Ef-ing F?

37

Alice de Tocqueville 05.09.10 at 9:05 pm

38

Alice de Tocqueville 05.09.10 at 9:25 pm

A quote from that link:

“Nothing could demonstrate more that Kagan hasn’t got the slightest clue what our entire legal system, let alone the Supreme Court, is supposed to be about.

So utterly disconnected was Kagan from what was actually going on in that oral argument that Justice Stevens himself had to correct her for getting wrong the point that he was trying to help her with (Oral argument, p. 43, lines 3-5).”

This isn’t the first source I heard this from, sdtill trying to track that down (it was on the radio).

39

anon j.d. 05.09.10 at 9:25 pm

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…

40

Alice de Tocqueville 05.09.10 at 9:38 pm

Ihttp://www.salon.com/news/feature/2010/04/15/kagan_as_solictor_generaln the meantime, here’s another, more summing-up, article:

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

41

Alice de Tocqueville 05.09.10 at 9:43 pm

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

42

LFC 05.09.10 at 10:11 pm

My impression is that Kagan’s performance in the Citizens United oral argument left something to be desired. That, however, is an impression. This is, IMO, a fact: Kagan could have delivered the most brilliant, compelling, and eloquent oral argument in Supreme Court history — channeling a combination of Daniel Webster, Thurgood Marshall arguing in Brown, King’s I Have a Dream speech, and Lincoln’s second inaugural — and the Court would have come out exactly the way it did in Citizens United, with exactly the same 5-4 split. Sometimes oral arguments can make a difference, but not in a case like this where it was quite clear what the majority wanted to do from the minute it ordered the whole case reargued. Statements that Kagan’s performance “enabled” the Supreme Court’s decision, insofar as they imply that the Court might have come out differently, I find completely unpersuasive. When five justices have made up their minds to do something, they have made up their minds, and the oral-argument equivalent of the Bolshoi Ballet, the Royal Shakespeare Company or the Chicago Symphony is not going to make a ******* bit of difference.

43

Alice de Tocqueville 05.09.10 at 11:15 pm

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.

44

Barry 05.09.10 at 11:47 pm

“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.”

Well, Summers got to be President of Harvard, apparently through nothing more that (a) being the ‘smartest man alive’ and (b) being a corrupt POS who’s screwed up everywhere.

Perhaps holding a ‘leadership’ position at Harvard isn’t such a glowing achievement.

45

Ben Alpers 05.10.10 at 12:16 am

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.

46

bianca steele 05.10.10 at 1:04 am

I take Ben Alpers’ point, I think, and I don’t know enough about the law to understand all the points Glenn Greenwald makes (comparing Kagan with Wood, for example). But if Greenwald has been right in general, that Obama isn’t progressive on issues like these, there would seem to be little chance that he will nominate someone far enough to the left to satisfy everyone who dislikes the supposedly-centrist-but-imho-much-too-far-right-leaning opinions it seems a lot of these judges share. So whoever he nominates is sure not to be far enough left.

So, what we’re left with, I think, is: will the nominee be reasonably left leaning on key points (where there’s variation among the possible nominees), or will the nominee be a good complement to the other members of the court? Greenwald thinks not, but I don’t really understand his argument. He cites her 2001 article on the extension of presidential authority over regulatory agencies, for example, but this is not necessarily a separation of powers issue (whether the executive is usurping the powers of the legislative branch).

47

Anderson 05.10.10 at 1:23 am

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.

48

rea 05.10.10 at 2:59 am

“quoting that passage from Kagan’s brief”

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.

49

CJColucci 05.10.10 at 3:01 am

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.

50

Aristotle 05.10.10 at 3:12 am

In my observation, the skills required to be a successful Dean have little to do with scholarship. These skills, in no particular order are the ability to (a) raise money from external donors (b) defeat other Deans in the fight for resources within the university (c ) manage highly strung faculty who all think they are above average (d) recruit good people (e) stop the President and/or Provost from interfering.

So Kagan might have been highly qualified to be Dean of Harvard Law School, even eith her thin publication record.

51

Tim Worstall 05.10.10 at 7:40 am

“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.

52

dbk 05.10.10 at 8:01 am

As an old friend, John, I am happy to attest that you are truly “brilliant,” do indeed have “many exceptional qualities” and are “scrupulously fair-minded.” I am certain you would be an excellent, outstanding even, member of SCOTUS or US-SG.

With respect to the nominee at hand, other commenters have pretty much summed up her strengths vis-a-vis the position. It is rather disheartening, though by no means inexplicable, that as essentially an academic lawyer (Deans are, or presumably were, at some time in their lives “academics”), she has published so little. She has never worked on one side of the bench, and has practically no experience on the other (a couple years with a Washington law firm, from what I saw in the bio). So, her qualifications seem to boil down to: (a) Ivy League pedigree; (b) friend of major players on the current Washington circuit; (c) good people skills (coalition-builder, nice to older folk). Somehow, this doesn’t seem sufficient to make one deserving of nomination, but it may just be sufficient to get her confirmed, which is, after all, the President’s goal.

53

Robin Datta 05.10.10 at 11:13 am

“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.

54

chris 05.10.10 at 1:29 pm

Kagan argued that the First Amendment allows for a cost-benefit analysis of speech content

Hasn’t that boat already sailed? I mean, how else do you interpret the “shouting fire in a crowded theater” standard? Or restrictions on advertising, “obscenity”, libel, etc.?

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

I have no particularly strong opinions on Kagan, but the idea that non-absolute interpretations of the Free Speech Clause are somehow radical and scary does not make a whole lot of sense to me.

55

Ben Alpers 05.10.10 at 1:47 pm

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.

56

Harry 05.10.10 at 2:05 pm

I agree with y81 strongly enough just to reaffirm his/her main point late in the thread. Whether someone is a good or proflic scholar, legal or otherwise, is pretty much entirely irrelevant to whether they should be a leading political decision-maker (I say pretty much, because I can only really see it as a minor, other-known-things-being equal, negative). Supreme Court justices are not scholars, they are people who make concrete decisions that exert power over other people. We should want them to be moderately smart, as decent as possible, wise if that’s available, and insightful about the consequences of their decisions. The confirmation process makes those rather difficult qualities to get; the weeding-out process of the pre-SCOTUS career makes it even harder. This is one reason why I’d endorse y81’s preference for a wider range of life experiences on the court (good luck with that one, mate!).

57

roac 05.10.10 at 2:32 pm

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.

58

Jeff 05.10.10 at 2:38 pm

I would have nominated Anita Hill.

59

Francis 05.10.10 at 4:13 pm

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.

60

geo 05.10.10 at 4:14 pm

Harry: Supreme Court justices are not scholars, they are people who make concrete decisions that exert power over other people

Not sure about this. They really are not supposed to make policy, but only to decide whether lower courts have decided correctly or, in rare cases, whether Congress has exceeded its (very broad) Constitutional prerogatives. (As for reining in the Executive Branch, Congress should do that.) To be a legal scholar, activist, or sage, or an experienced legislator (not the same thing, in America, as a long-time office-holder), would seem to be the best qualification. Probably the best qualified person in America to be on the Supreme Court is Ralph Nader.

Re Kagan: just one more example of Obama’s now-indisputable centrist mediocrity.

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Jake 05.10.10 at 4:23 pm

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

62

Old-Timer 05.10.10 at 4:25 pm

“They really are not supposed to make policy” but they certainly do. Actually, I think they are supposed to make policy; it goes with the territory.

As Glen Gleenwald 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.

63

mds 05.10.10 at 4:27 pm

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.

64

y81 05.10.10 at 5:01 pm

Francis (@59): I concur that very few practicing lawyers read law review articles. Such scholarship as there is that is useful to professionals is mostly published by private publishers like Warren Gorham and Lamont. (E.g., WG&L publishes a “UCC Journal.”)

I’m not sure if meaningful comparisons to other fields are possible. What would a “practicing” sociologist or linguist or historian do, other than work as an academic? The closest analogy I can think of is, again, economics, and I really don’t know the answer. Do economists at the Federal Reserve or JP Morgan or wherever read scholarly journals? Or is there a separate universe of publications that serve their needs?

65

weserei 05.10.10 at 5:14 pm

@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.

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Harry 05.10.10 at 5:19 pm

The answer to y81’s question is interesting: they not only read them, but they also write them.

67

blah 05.10.10 at 5:52 pm

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.

68

Henri Vieuxtemps 05.10.10 at 6:15 pm

I would have nominated Anita Hill.

Angela Davis!

69

LFC 05.10.10 at 6:46 pm

@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.”

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chris 05.10.10 at 7:55 pm

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.

Yes, it does. The former is necessarily a special case of the latter. It’s just a matter of how much “cost” has to be on the scale before you consider it to outweigh the “benefit” of people being able to say what they want. Traditionally, it takes a very high cost such as risk to human life (both the theater stampede, and things like military/espionage secrets) for some kinds of speech, and for others a relatively mild interest like protecting private parties’ reputation can outweigh at least knowingly false speech.

Obscenity in particular is notoriously vaguely defined, but speech that falls under it gets practically no protection at all.

Some people are clearly uncomfortable with the *idea* that what is left of free speech after you account for all the various exceptions is a somewhat cratered landscape. But, like I said, that boat has sailed already.

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weserei 05.10.10 at 8:07 pm

@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.

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weserei 05.10.10 at 8:11 pm

State secrets are protected because those who have legitimate access to them have made a legally binding promise not to divulge them; it’s no different from a nondisclosure clause in a lawsuit settlement.

And the constitutionality of obscenity statutes is in serious doubt. Note that pornography involving consenting adults is freely available through legal channels throughout the entire country.

73

Roger Albin 05.10.10 at 8:48 pm

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

74

ptl 05.10.10 at 9:01 pm

@weserei; “falsely shouting fire’ is Holmes when ruling public opposition to the draft, in wartime, illegal. The point is not falsehood but ‘clear and present danger’. The holding’s been overturned but in favour of, basically, prohibition of incitement to riot; again, no falsehood need be involved.

75

Anderson 05.10.10 at 9:26 pm

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.

76

ajay 05.10.10 at 9:37 pm

75: Really? Better than “I have just signed legislation that will outlaw Russia forever. We begin bombing in five minutes”?

77

Donald Johnson 05.11.10 at 3:20 am

“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.)

78

weserei 05.11.10 at 3:44 am

Holmes’ ruling in Schenk was overruled in Brandeburg v. Ohio, which a) explicitly upheld Holmes’ assessment of the fire/theater hypothetical and b) drew the line between abstract support for violence (protected as speech) and specific exhortation to commit violence (a form of attempted criminal conspiracy which is not protected simply because it involves the act of speaking).

We can debate the technicalities, but the core point is that current law goes nowhere near any sort of quasi-mathematical “cost-benefit analysis.” And benefits of free speech have never, even in Schenk or other such obsolete cases, been considered; the federal judiciary has not defended the merit of the Free Speech Clause, but simply taken it as necessary to enforce.

79

bro 05.11.10 at 7:51 am

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.”

80

Bill Gardner 05.11.10 at 10:21 am

Re: 64, 66 on journal literature for practitioners

This is a concern in medicine, where surveys show that practicing docs do not read the academic journal literature. A genre of for-profit ‘practitioner’ journals has developed that publish brief overviews rather than original research or systematic reviews. I believe that some of them are more widely read than the famous journals you have heard of. Practitioners say, on surveys, that these overviews are more useful and better written. But there isn’t much peer review here, and there are worries that Pharma uses these venues to plant ghostwritten advertising, masquerading as professional opinion.

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anon 05.11.10 at 3:22 pm

“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.

82

anon 05.11.10 at 3:36 pm

“And some of the more prolific publish minor variants of the same article.”

No self-respecting law review would publish “minor variants.” That kind of academic fraud is not tolerated in legal academia. Unfortunately the practice seems to be widespread among social scientists.

83

anon 05.11.10 at 3:55 pm

“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?

84

roy belmont 05.11.10 at 5:31 pm

The WSJ explains Kagan’s qualifications for the Supreme Court bench, in a backhanded, oblique, quietly gloating sort of way:

“From 2005 to 2008, Ms. Kagan was a paid member of the Research Advisory Council of Goldman Sachs Global Markets Institute, according to financial-disclosure reports she filed after being appointed to her current job.”

85

John Quiggin 05.14.10 at 8:18 am

#81 (anon) Well, you’ve got me there and my campaign for a Harvard chair in law has been exposed as a petty useless sham. Kagan’s three articles in highly ranked journals (just by chance, those of her home institution in each case) certainly outrank the low-grade places my three law articles have appeared, making it clear that (even though she has almost zero courtroom experience) her legal scholarship qualifies her not only for Harvard, but for a place on the Supreme Court.

It’s fortunate for me that provincial Australian economics departments are satisfied with the American Economic Review, Journal of Economic Theory and so on.

For anyone else who who missed them irony alerts off

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ptl 05.14.10 at 8:56 am

@weserei, that is why I said Holmes’ ruling had been ‘overturned’ (I was too lazy to mention Brandenburg). I think we agree basically, but I still want to maintain that ‘lie’ is not in fact the point, that incitement, ‘exhortation to commit violence’, is.

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