Monday, May 17, 2010

Elena Kagan: Too ‘Academic’?

It really confuses me why everyone thinks Elena Kagan shouldn't be nominated to the Supreme Court because she “has no experience outside of academia” - this is something I heard on Saturday, and it’s totally wrong. This post is not about the Justices’ politics, or their performance cards, but about the oh-so-politically-hot-button issue of “experience”. Irrespective of whether or not you agree with her politics (most analysts and associates seem to think she's right-of-centre), she's actually had plenty of real "world experience", and her career is not dissimilar to sitting Supreme Court Justices.

If anything, there might be an argument to be made for choosing someone who has different experiences, as Kagan’s biography doesn’t read too differently from other Justices’. This fact has spawned a number of editorial cartoons that point out the Ivy League over-representation. Here’s one from Nick Anderson:

Nick Anderson

And one from Signe Wilkinson:

Signe Wilkinson


Lisa Benson

Anyway, let’s get back to Kagan’s experience and career:

- 1987 : Clerked for Judge Abner Mikva of the DC Circuit Court of Appeals

- 1988 : Clerked for Justice Thurgood Marshall of US Supreme Court - something that most, if not all eventual Supreme Court Justices have done, I believe (could be wrong, I didn't go all the way back and check them all)

- 1988-91 : Worked for a DC law firm

- 1991 : Joins the University of Chicago Law School

- 1995 : Granted tenure due to reputation and skills as teacher, ‘despite her lack of publications’ (which seem to have focussed on First Amendment Rights, a big-ticket issue for the Supremes)

- 1995-1999 - President Bill Clinton's Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council

- 1999 - Because the Republican Chairman of the Judiciary Committee didn't schedule a hearing, Kagan's nomination to the DC Circuit Court of Appeals fell through.

- 1999-2001 - Visiting Professor at Harvard Law School (lauded article published about aiding the President in crafting regulative policy)

- 2001-3 - Made full Professor at Harvard Law School

- 2003-9 - Dean of Harvard Law School

- 2009-Present - Solicitor General for President Barack Obama

So I guess my point is... where's the lack of experience? She's worked as a lawyer, in academia, and in government. How is this so wrong? In fact, some might say she has more experience than Obama. She’s written articles and papers on Presidential Power, the First Amendment and prisoner rights – are these not pretty key issues that are ricocheting their way around the beltway at the moment? Paul Campos, who clearly is not enamoured with the idea of Kagan on the Court, ‘wittily’ wrote that

“Kagan’s work reminded me of Orwell’s observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, ‘this book inspires in me no thoughts whatever’.”

Campos’s premise is that Kagan’s not really any different to George W. Bush’s nomination of Harriet Myers, and perhaps even a worse choice. For example, he mentions that Kagan’s four years in the Clinton White House, “where she was associate White House counsel – a full rung down from Harriet Miers' position in the Bush White House”, clearly an attempt to further belittle her career. But, as we shall see, it’s the same “rung” that John Roberts served in.

For those conservatives who want to say she’s not good enough, shall we compare her career to that of pre-Supreme Court Chief Justice John Roberts (information taken from the ‘The Justices of the Supreme Court’)?

- 1979-80 : Clerked for Judge Henry Friendly of the Second Circuit Court of Appeals

- 1980-1 : Clerked for then-Associate Justice William Rehnquist from 1980-1

- 1981-2 : Special Assistant to US Attorney General William French Smith

- 1982-6 : Associate Counsel to President Reagan under Fred Fielding

- 1986-93 : Principal Deputy Solicitor General (to use Campos’s terminology, “one rung below” the position held by Kagan under Clinton)

- 1992 : Just like Kagan, no hearing was heard for Roberts’s nomination to DC Circuit Court of Appeals

- 1992-2001 : Successful private practice

- 2001 : No hearing held for DC Circuit nomination (again)

- 2003-5 : DC Circuit Court of Appeals

So, overall, not a considerable difference. Their early careers seem to have been pretty similar, and the main difference is that Kagan was appointed to a ‘higher’ government job sooner than Roberts, which explains his couple of extra ‘lower’ governmental posts. (For the uncharitable, this might just suggest there was nobody better for the position when Kagan was around, if you are prone to think she’s feckless.)

So, even if you disagree with her politics, you might assume that those who worked with her thought her good enough to be appointed so soon/young – indeed, she has been described as “brilliant” and “extraordinary” by Lawrence Lessig, a Professor at Harvard Law School who worked with Kagan at Chicago University’s Law School. According to an ABC piece by Ariane de Vogue and Jake Tapper, Kagan

“is known as one of the finest scholars in the country, dazzling both liberal and conservative friends with her intellectual prowess and her ability to find consensus among ideological opposites.”

For an interesting, balanced, appraisal from a former colleague, read Richard Epstein’s article about Kagan, in which he explains how, despite disagreeing with some of her actions and policies while an academic, he thinks she would make a good nominee and Justice.

So, again I ask – why so inappropriate a choice? Because she doesn’t have the two year judicial experience that Roberts does from his time on the DC Court? Really?

To return to Lessig, he writes of “a general weakness in appointing law professors to high courts”, which is that

“We law professors – especially at places like Harvard or Yale – spend too much of our time worrying about abstract right, not practical right. We’re skilled in working out the very best theory. We’re not very good at figuring out how to engineer an argument to the best result. We’re the opposite of a politician, though we have just as many sins: Politicians care too little about what is right, and too much about getting the deal. Law professors care too much about what is right, and care too little about the strategy for getting what is right.”

Lessig then goes on to argue how Kagan is different:

“the core of Kagan’s experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I’ve seen her flip the other side. Those were the reports of her work inside the Clinton administration (Clinton’s nickname for her: ‘Judge’). Many describe her success at remaking a radically diverse law school (the Harvard I've returned to is not the Harvard I left). I’ve seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue.”

Kagan, Lessig argues, can see a fight and, “if she can see a path through... keeping her position in tact, she can execute on it.” Lessig goes on to say that, even when victory is obviously not possible, “she will engage the other side boldly”. It is extremely rare, also, for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United – this could make for interesting conversations in Chambers…).

Too Much Academia

For those who think Kagan should be disqualified because she spent too much of her time in academia (“too much time immersed in theory, not enough time in practice” is one way I’ve heard it), then this should surely disqualify Antonin Scalia. Scalia, who took his seat as Associate Justice of the Court in September 1986, has a pre-Supremes career of:

- 1960-1 : Sheldon Fellow at Harvard University

- 1977-82 : Professor of Law at the University of Chicago

- 1980s (couldn’t find exact dates) : Visiting Professor of Law at Georgetown and Stanford Universities

- 1981-2 : Chairman of the Bar Association’s Administrative Law Section

- 1971-2 : Office of Telecommunications Policy General Counsel

- 1972-4 : Chairman of the Administrative Conference of the United States

- 1974-7 : Assistant Attorney General for the Office of Legal Counsel

- 1982-6 : Appointed to the DC Court of Appeals (giving him one more year’s judicial experience than Roberts)

Clarence Thomas has only one year judicial experience pre-Supremes, after an exciting and brave career as a corporate lawyer for Monsanto (roughly during years when the company was attempting to take over South America again, so that had to be a little exciting). Thomas also had state-level governmental experience as well as national governmental experience, which sets him apart from the other Justices.

Think I’m picking on the conservative judges? Ok, let’s take a look at Ruth Bader Ginsberg’s career pre-Supremes:

- 1959-61 : Clerked for Edmund L. Palmieri, United States District Court for the Southern District of New York

- 1961–3 : Research associate and then Associate Director of the Columbia Law School Project on International Procedure

- 1963-72 : Professor of Law at Rutgers University School of Law

- 1971 : Instrumental in launching the Women’s Rights Project of the American Civil Liberties Union

- 1972-80 : Professor of Law at Columbia Law School

- 1977-8 : Fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California

- 1973-80 : ACLU’s General Counsel (on the National Board of Directors from1974–1980)

- 1980-93 : DC Court of Appeals for the District of Columbia Circuit

Lack of Judicial Experience

For those who are bothered by her lack of judicial experience, take into account that a Senator held up her nomination hearing until the president who nominated her left office (as already mentioned above, the same has happened to others, but Roberts got another crack at it under George Bush Sr.). As for the bizarre negative that Kagan’s “spent too much time in academia”... John Roberts, John Paul Stevens, Samuel Alito, Clarence Thomas and Sonia Sotomayor didn’t serve as professors. The other four all served in academia: Antonin Scalia and Ruth Bader Ginsberg as mentioned above; Anthony Kennedy for 23yrs (McGeorge School of Law, University of the Pacific); Stephen Breyer for 27yrs (1967-94 at Kennedy School of Government, and also as a visiting professor at Sydney University and the University of Rome).

This strange anti-intellectualism that permeates US political society and many people who follow US politics (even if they are themselves postgraduates or PhDs) is difficult to understand. Susan Jacoby wrote an interesting book that took a look at this, The Age of Unreason, which is worth reading (in fact, there are many publications on this subject, and I urge you to look them up, if you’re in any way interested).

Some people will say that they are uncomfortable with someone sitting on the court with no judicial experience. I can understand that – who, really, wants anyone in a powerful position without ever having comparable experience either within that organisation or in a similar one? However, knowing that other Justices had minimal judicial experience before their appointment to the Supreme Court makes me wonder if it’s really so important? Perhaps, as some have argued, her lack of judicial calcification (my terminology) will allow for broader, less institutional thinking on the Court – something that might go some way to reviving the Court? Interestingly, the Justice she would be replacing, David Souter, had the most pre-SCOTUS judicial experience: 22yrs (1978-90).

Limited Publications

Another concern about Kagan is her relatively thin number of publications. Let’s return to Paul Campos, whose article reads like an attack piece, picking on minor issues that could be easily put at the feet of any judicial appointee he supported. In a rare sign of balance, he writes:

“Of course cynics have noted that today Supreme Court nominees are often better off not having an extensive ‘paper trail’ regarding their views on controversial legal issues.”

Unable to allow this to go without a snarky comment, he continues with:

“Who would have guessed it would be possible to retain this virtue while obtaining tenure at two of the nation's top law schools?”

Despite the tone and approach, I think I would actually agree with him on the latter comment. I also agree with the final point of the article, in which Campos compares Kagan’s lack of publications on important issues to that of Myers’s:

“For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.”

Within universities, the ‘publish or perish’ mentality/policy is still alive and well, and for anyone to progress so far within academia without publishing much is indeed surprising. Or, could it be a sign of just how good she is in practice, rather than on paper? I don’t know enough about her to answer this question, but I think it’s something that warrants investigation. That she has never seen fit to publish on key issues (though, again, I would say that the First Amendment and Presidential Authority are pretty damn important issues...) just shows the same lack of courage that most, if not all, Supreme Court hopefuls seem to show of late. It makes her unexceptional, but she is in no way alone in this.

Breadth & Diversity of Experiences

To refer to my comment about Thomas’s state-level experience making him different from the other justices (he also worked for a Senator), it appears rare for them to have varied career biographies. Stevens stands out from his service in the Navy (1942-5), before a career path that is as similar to the rest as to make no odds. Kennedy was a member of the California Army National Guard in 1961 before being a professor and government appointee. Breyer was on the Watergate taskforce (1973).

Kagan would become the fourth sitting Justice who clerked for a Supreme Court Justice: Roberts, Breyer and Stevens. Does this not count for something? It is ‘common knowledge’ (i.e. something that perhaps shouldn’t be trusted) that Supreme Court clerks do a lot of work for the Justices (research, etc.) and sometimes are called upon to draft responses, opinions, and dissents for their Judge. Her admittedly minimal experience of the Court could stand her in good stead, if she were to join the ranks of the Supremes, at an institution that is so steeped in tradition and proper etiquette (i.e. nothing ever really changes).

On a note of personal interest, it is noticeable how the more conservative Justices have the least judicial experience before their appointment – this would include Kagan who, despite serving only Democratic presidents, is considered to the right of centre and quite conservative (although Lessig does remain convinced of her “progressiveness”).

[Most of the dates and facts for this post were taken from the PDF linked above, but also here.]

Just because there have been so many good editorial cartoons about the Supreme Court nomination process, here are a couple more from the past couple of weeks.

First, from Clay Bennett:

Clay Bennett

Mike Luckovich:

Mike Luckovich

Tony Auth:

Tony Auth

(Just to address the obvious criticisms of the Republican approach to Democratic nominees – deserved or not, there’s plenty to suggest that there will be no filibuster of Kagan’s nomination, and most people agree that she will likely be appointed.)

Thought it might be best to finish on a lighter note.