…in which I become petty and backbiting — sort of

Elena Kagan may not be the greatest scholar in the world — and that may be why President Obama picks her for the Supreme Court.

Could this be true?

University of Colorado law professor Paul Campos notes in The New Republic that Solicit0r General Elena Kagan, former Harvard Law School dean and current front-runner to succeed John Paul Stevens

has published very little: three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces. Compare this record to those of the three other law professors most commonly mentioned as potential replacements for Justice John Paul Stevens: Stanford Law professor Pamela Karlan and Harold Koh, who became Yale Law’s dean in 2004, each have more than 100, and Kagan’s Harvard colleague Cass Sunstein, who also works for the Obama administration, has several hundred, including more than 20 books.

I checked, and Campos is right: Kagan’s scholarly record is quite minimal. Her most recent article, Presidential Administration, is a good, solid piece of work, and something I would have been proud to have written. Still, its major argument — that presidential direction of administrative agencies can foster regulation if the President himself is pro-regulation — is hardly earth-shattering.

All of which shows why Kagan might be the best choice for the court.

Consider that Kagan first got tenure at the University of Chicago based on two articles — which usually is what that notoriously overachieving faculty wants in one year from a junior professor. Then she got an academic chair at Harvard based on one more piece, Presidential Administration. She wrote nothing else for more than two years at Harvard. And then she was appointed Dean.

This shows that Kagan may not be a great scholar, but she is enormously skilled at impressing older colleagues — and that’s just what the doctor ordered for this appointment.

Essentially, any Supreme Court appointment this cycle has two tasks: 1) vote the right way; and 2) convince Anthony Kennedy to do the same. Kagan seems to have the skills to do that.

Indeed, if you think about it, those justices with the greatest scholarly credentials have not generally been thought of as effective concerning the Court’s internal politics. Holmes and Brandeis were essentially isolated dissenters. As Richard Lazarus has demonstrated, Antonin Scalia has consistently undermines his own authority within the Court by insisting on his own theories of things. It is people like Earl Warrren, William Brennan, John Marshall, and John Paul Stevens, who were plenty smart but not infatuated with their own jurisprudential theories, who got things done.

Barack Obama is a student of the Court. I think he understands this history. And it’s why he’s leaning toward Kagan.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

12 thoughts on “…in which I become petty and backbiting — sort of”

  1. My guess is that Obama's biggest focus – as would be the case for any President since Bork, and particularly since Harriet Miers, and let's raise a glass to Clement Haynsworth and Harrold Carswell – is getting through the confirmation process without disgrace and hurting the administration. I'm going to claim that's Task 1. The kind of fire that a Harold Koh or Goodwin Liu would draw would risk hurting the Dems in November. That's why you see the three front runners being mentioned now – all of them play well with others. Will Kagan be best of the three, at sliding through unharmed? Seems like a decent choice.

  2. Given her ridiculously sketchy academic credentials for such a high-achieving academic lawyer, I'm thinking the Roman Hruska argument is the right way to go with the Kagan nomination, which btw is just another slap at those of us who elected Obama. Can't actually have someone like Diane Wood on the Court, who you know, actually brings abject conservatives (sic) around to her way of thinking when warranted.

  3. The reasons Jonathan Zasloff gives for which Obama may pick Kagan are certainly plausible, but they need not be the only reasons. Another rather obvious reason, which it seems tendentious of Zasloff to have omitted, is her defense of the expansion of executive power. See Glenn Greenwald on this: http://www.salon.com/news/opinion/glenn_greenwald…. This posting, the posting before it by Mark Kleiman, and many previous postings, suggest that the writers on this blog are unwilling to be critical of Obama. For reasons to be critical of him, see this full-page ad, which that appears on page 17 of the May 27 NY Review of Books: http://salsa.democracyinaction.org/o/1170/images/…. (It takes a while for the pdf to come up.)

  4. Cool… the inverse of publish of perish.

    Which is another way of saying:

    Kagan hasn't left a lot of stray bread crumbs around that might lead to her nomination being aborted…

  5. "My guess is that Obama’s biggest focus – as would be the case for any President since Bork, and particularly since Harriet Miers, and let’s raise a glass to Clement Haynsworth and Harrold Carswell – is getting through the confirmation process without disgrace and hurting the administration."

    I would say that his biggest focus, like most Presidents of the last 80 years or so, would be picking somebody who would never find anything he wants to do unconstitutional… No matter if it is. Obama has made it quite clear that he regards civil liberties as kind of an afterthought, which should never get in the way of government policy. Only the terrible job he's done to date vetting nominees gives me any hope at all any Supreme court pick of his won't share that point of view.

    Certainly, I'm not enthused by Kagan's defense of book banning before the Supreme court. It suggests he'll get what he wants in this case.

  6. Great. Kagan is good at impressing older colleagues. I just wish I had a reason to think she will impress them to do the right things.

  7. @Brett Bellmore: I'm not enthused about book banning either, but lawyers will by default argue things they disagree with if they think it's in the larger interests of their clients, AND they think the general success of their client is in the larger interests of society. Seems to me that's at the core of how lawyers — especially elite lawyers — see themselves and their role. Kagan's being in that main stream — in the Harvard strand of it in particular — may be a mixed blessing, but taken together with her clearly Democratic affiliation and her ability to convince her seniors to do what she wants, seems quite encouraging. The worst damage done by Bush (and distressingly, not undone yet by Obama) is corrosion of that mainstream ethos in DOJ and the courts.

  8. "Seems to me that’s at the core of how lawyers — especially elite lawyers — see themselves and their role.'

    I agree that's how lawyers view their role. It's also how non-lawyers view lawyers, which is why lawyers are so widely despised.

Comments are closed.