Elena Kagan nominated for Supreme Court
And Paul Campos asks whether she is the next Harriet Miers?
It's a very good question. What distinction has she achieved?
As a judge -- zero. Not that I consider that a barrier; the Warren Court boasted some serious intellect, despite only one Justice having sat on a Circuit court (and Justice Black having served a year as a police court judge).
As a lawyer -- virtually none. Two years of being an associate in the big firm. I'd be rather surprised if she has ever tried a case to a jury. She may well have never tried a case, period.
As a legal academic -- Campos points out she got tenure on the basis of a single law review article that was mostly a review of others' research. In twenty or so years since, she published two short articles and two book reviews, that's it.
Heading up Harvard Law, she chiefly distinguished herself by fundraising -- hopefully not a major concern at the Supreme Court level -- and by covering up plagiarism committed by faculty members.
1) With two years of experience (decades ago), she was appointed Solicitor General and has been there for a year. Not much experience at all. The SG's job is mainly administrative. Their squads of careerist lawyers handle things. If an agency wants to take an appeal, they write up a detailed legal memo on it, and the SG's staffers say yes or no; if yes, the relevant division of Justice does the briefing and argument (except for the handful of cases that reach the Supreme Court). The SG's privilege is to argue those if he/she wants to. I've heard no reports of Kagan's skill there.
2) Law review articles... it depends on the timeframe. Back in the 80s, it could take 9 months to get one published (but there was no problem with writing another during that time, since it wasn't 9 months of work, but largely 9 months of delays). You had to type it up triple spaced for editing and mail it around; there were fewer reviews and they could be both slower and more choosey.
In recent years, it's a cinch. You submit manuscripts electronically via a service called Expresso. Upload it, designate what journals you want (out of 550+, it costs $2 each, but as a prof. your school usually has a subscription that eliminates that), and it's to them in an hour. If one bites, you can send a mass email to others asking for expedited review by the deadline for the first.
I published two articles in 2009, have two more published in 2010, and a third accepted but not yet in print ... and it's only May. (To be fair, there are a lot of profs out there with 3-4 articles. I'm told three over six years is enough to get tenure, and some seem to stop right there).
The other thing about her publication list is it includes several book reviews, which are generally treated as "if you don't have time for a real article, whip out a book review." Also at least one publication at the review of a school where she taught, which again is "if you can't place it elsewhere..." The reviews are student-run, so a prof is usually loathe to have his/her own students evaluating the piece, it smacks a little of undue influence.
Wouldn't Ms. Kagan best be known for her anti-US-military stance at Harvard, banning recruitment there?
Posted by: WPZ at May 10, 2010 01:54 PM
Can't somebody put a hold on her nomination until 2012? lol.
Posted by: 5thofNov at May 10, 2010 04:16 PM
I look at the requirements for tenure in most majore Arts and Sciences departments and they seem to be vastly superior to what was required of Ms. Kagan. I know from my time in grad school in political science that the minimum to be even considered for tenure was an article a year in a good, refereed journal for 6 years. That was the minimum for God's sake.
Then I look at the scholarly output of someone like Dave Kopel, Dave Hardy, or Glenn Reynolds and it is far superior to Kagan.
However, my fear is that if Kagan is derailed the alternatives may be even worse in terms of being an ideologue.
Posted by: J Richardson at May 10, 2010 08:27 PM
I say no to Kagan.
I dont like anyone who is getting more pussy than me.
Posted by: T. Lewis Mark at May 10, 2010 08:55 PM
Rachel Maddow REALLY needs to lay off the butter.
Posted by: Montjoie at May 10, 2010 09:16 PM
So a president with no paper trail appoints a justice with no paper trail.
Posted by: WJ Alden at May 10, 2010 09:33 PM
I am not surprised that the opposition to Kagan is based on misogyny and homophobia. It is to be expected from right-wing bigots who have not taken a moment to read any of her work or to learn about her impressive career. She will instantly be more qualified than Clarence Thomas, that's for sure, who does not even belong on the Court to begin with because he was an affirmative action pick. Yet, of course, you conservatives love him because he is a mindless spewer of right wing dogma.
Posted by: Vinny B. at May 10, 2010 09:41 PM
Hmmm Vinny, I'm seeing a lot of assertions but no solid evidence to back any of them up. Yes, yes, I know, you throw out the worn bromide of "homophobia", but really, sir, that's so trite. Can we please get something new? There was time that used to scare us or have any weight...not now. In fact, the first individuals to bring up her homosexuality were lefties in their constant quest to break everyone down by pallor and genitalia. (the terrible joke above not withstanding).
In any case buddy the fact remains she hasn't done anything in her career. Oh yeah, she's from Haaavaad. Guess this president doesn't care much about true diversity, does he? Just another Haaaavaad lackey, separated from reality. We would read her work, had she any to read.
Oh, btw, you lefties really need to work on your arguments, you are sounding more and more like knee-jerk reactionaries, calling race or sex bias at a moments notice. It just makes us all embarrassed for you.
Posted by: Alex at May 10, 2010 09:51 PM
Eugene Volokh seems tothink pretty highly of her scholarship, for all he disagrees with her. He also discusses several articles that Camos apparently missed.
Posted by: Shelby at May 10, 2010 09:59 PM
"She will instantly be more qualified than Clarence Thomas, that's for sure, who does not even belong on the Court to begin with because he was an affirmative action pick."
Is your opposition to Clarence Thomas based on the color of his skin?
Posted by: John Pearson at May 10, 2010 10:04 PM
Kagan's nomination is absolute post-post-modern egalitarian brilliance by President Obama. Devoid of a single meaningful accomplishment in a life spanning over five decades (which is remarkable given her Upper West Side and Harvard pedigree), she's the poster child of the anti-exceptionalist.
Her nomination itself signifies the end to an America that differentiates itself based on achievement, quality, uniqueness, drive, character and intelligence. She's the UnterMensch, the antithesis to Nietzsche's differential aspirations. She's the interchangeable part, the anonymous cog, the anonymous participant that is important only through Empire's proclamation. Lacking an Obama appointment, she'd retire a nameless, accomplishmentless being only known for her proclivity for cats.
Conservatives have completely underestimated this President. He's rewriting America on a completely deeper level, changing its fundamental hermeneutic meaning and sociological values. Bravo to the President for his brazen effort expressed through this nomination!
Posted by: Hatless Hessian at May 10, 2010 10:18 PM
"So a president with no paper trail appoints a justice with no paper trail."
Just as a president with no real world experience appoints a justice with no real world experience.
This is nothing new. We have an entire administration full of these... After Bush, the electorate gave us Bush League.
Posted by: Pitbullll at May 10, 2010 10:49 PM
So she has the same level of experience of our commander in chief?
Posted by: Concerned Citizen at May 10, 2010 11:12 PM
The Harriet Miers comparison is not very accurate. Miers had some experience. She had served as chief justice and as a state BAR association president. Miers problem was she didn't attend Haaavad and her experience was in Texas which to some elites doesn't quite count. Kagan by comparison has little to know real experience, but her lack experience occurred on the East coast so it is more valid.
It is silly that some folks evaluate people in their 50's based on what university they qualified to attend (or could afford) when they were 18. Don't get me wrong I don't want dummies on the court. I just don't think the dividing line is which college one attended.
Posted by: largebill at May 11, 2010 07:44 AM
"As a lawyer -- virtually none. Two years of being an associate in the big firm. I'd be rather surprised if she has ever tried a case to a jury. She may well have never tried a case, period."
Good grief. It's much easier to heap on abuse when you ignore the facts. She's Solicitor General of the United States, responsible for representing the US Gov't at the Supreme Court. You may not realize it, but in lawyering circles, that's a pretty big deal.
Posted by: SeaDrive at May 11, 2010 08:00 AM
I guess I'm not the only one mystified how someone with such a light research output could get tenure at the University of Chicago.
These are political scientists and there probably isn't a conservative, libertarian or Republican in the whole lot.
Posted by: J Richardson at May 11, 2010 08:22 AM
I agree with the spirit of what you posted but your statement that:
"I know from my time in grad school in political science that the minimum to be even considered for tenure was an article a year in a good, refereed journal for 6 years. That was the minimum for God's sake."
is misleading at best. I don't know very many disciplines where more than one or two two people get an "A" level hit every year for 6 years. We might just be disagreeing over the meaning of the word "good" but in general the more reputable the journal the harder it is to get into them. (I have one article that is at its third top journal and has been under review for 8 years now! It has been taking about 3 to 4 years each just to get rejected.)
Posted by: Ross at May 11, 2010 08:35 AM
So she will be just another Affirmative Action Baby up there. They complained about Palin's qualification but at least she had done SOMETHING. This woman, as with our illustrious comrade BO, has done nothing and received promotions typical of university life for that nothing. At universities, we have discovered that chit floats, getting to the top and polluting everything from the top down.
Universities such as Harvard have become garbage. The continued belief in the quality of education from those places is in the minds of the anointed. Harvard was in trouble for having 90+ % of its students receiving "A"s. The issue is Harvard is supposed to sort out its own students NOT give them comparative grades to the rest of the folks. And then there is the current law school program that gives only Pass/Fail grades. Could have been the other college but I recall it as Harvard. My Gx10Gfather who founded Harvard, bless his soul, is now known as Propeller Tom.
Tiocfaidh ar la!
Posted by: FWB at May 11, 2010 09:12 AM
Actually, as Solicitor General, her performance in the Citizens United case was abysmal.
Posted by: SPQR at May 11, 2010 09:52 AM
I am of the opinion that the Supreme Court is setting itself up for a legal challenge, as to whether or not they are engaging in discrimination, by limiting the Court to Ivy League Graduates.
The following applies to Kagan, just as it did to Sotomajor.
This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk’s collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.
Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.
Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor’s diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.
Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.
A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.
Chief Justice John Roberts
Ruth Bader Ginsburg (Harvard, Columbia)
Samuel Alito – Yale JD 1975
Clarence Thomas – Yale JD 1974
Sonia Sotomayor – Yale JD 1979
Northwestern Law School.
Justice John Paul Stevens
Posted by: hjp at May 11, 2010 02:22 PM
I don't consider what I said about the number of articles required for tenure at a major school misleading. UNC-Chapel Hill where I was in grad school generally required 6 articles in 6 years to be granted tenure. Standards could have changed since the early 1980s but I doubt it given the number of PhD's on the market.
The "good" journals were ones like the Am Pol Science Review, the Journal of Politics, Pol Sci Quarterly, etc. An article published in the North Carolina Political Science Review or other minor journal didn't really count. You could publish articles in journals related to your specialty like Public Administration Review and that would count.
In political science, books didn't cut it. I distinctly remember when David Garrow didn't get rehired at Carolina even though he had published two books and a smattering of articles in minor publications. BTW that second book, "Bearing the Cross" won the Pulitzer Prize for Biography the next year.
Of course, other schools and other departments may vary in their requirements and times do change. However, I think if you examine the CV's of most tenured professors at major research institutions like Carolina and Chicago, they will have a ton of research published in the years between being hired and granted tenure. They make slack off after getting tenure but certainly not before getting it.
Posted by: J Richardson at May 12, 2010 11:58 AM
Major head-slapping moment.
Well, duh--do conservatives want brilliant, accomplished liberal justices, or do we want Affirmative Action hacks?
Damn! The Liberals are supposed to be the ones on drugs. Bitching because Effendi Obama's appointments are intellectually mediocre--whiskey-tango-foxtrot!
Posted by: Lou Gots at May 16, 2010 05:10 AM