Yesterday, the Manhattan Institute's City Journal published an online piece I'd written shortly after word leaked Sunday night that President Obama was set to announce Elena Kagan as his choice to succeed John Paul Stevens on the U.S. Supreme Court. While I stand by virtually everything I wrote then, I now retract my claim -- which unfortunately made its way into the piece's title and lede -- that Kagan "flunks her own test" for judicial competence.
In the wee hours of Sunday night and Monday morning, I didn't have time to peruse Kagan's academic writings, but my flash reaction to the nomination included two critiques I would now reject: (1) that Kagan's academic publishing record, while adequate, wasn't that impressive; and (2) that she failed to live up to her own standard, articulated in 1995 in the Chicago Law Review, that "a nominee's previous accomplishments evidence an ability not merely to handle but to master the 'craft' aspects of being a judge." Both those assessments made it into my first draft of this piece, which I completed about 2 a.m. Monday morning.
I based my first reaction not on a direct review of her body of scholarship but on the second-hand accounts of others who had surveyed her writings, including this harshly critical review by left-wing law professor Paul Campos and this more charitable assessment by George Mason law professor Ilya Somin (a law school classmate and friend, whom I deeply respect; see Ilya's own perspective on Kagan's nomination here). After Eugene Volokh published this decisively persuasive assessment Monday afternoon, I asked the City Journal editors to edit my piece to reflect what I then believed (and now believe), i.e., that Kagan's academic publishing record is not merely middling but rather strong, in the fields in which she wrote over an eight-year span. As my published op-ed explains: "Kagan's scholarship isn't of the off-the-wall variety that we see so often in the academy. Her academic writings are, in fact, the main feature distinguishing her nomination from that of another nontraditional Supreme Court nominee, Harriet Miers, whom George W. Bush unsuccessfully tried to place on the high court." (More on that later.)
My second initial reaction that I now reject unfortunately made it into the published piece. In assessing Kagan's own articulated standard for judicial nominees, I relied on a verbatim block quote from her 1995 law review piece cited by Ed Whelan, president of the President of the Ethics and Public Policy Center (Kagan's full book review is available at "Confirmation Messes, Old and New," 62 U. Chi. L. Rev. 919 (1995)). Ed is exceptionally bright, having clerked for Justice Scalia, and I generally find him to be extremely comprehensive and thorough (if on occasion a tad acerbic in tone), so I was surprised to discover that, in this instance, Ed inadvertantly took the quote from Kagan's article out of context, which he now freely admits. In light of Kagan's having written that a prospective judicial nominee could "demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind," and in light of what I now perceive to be a rather solid record of academic writing, I do not think it's fair to assert that Kagan "flunks her own test" for judicial service.
Also note that I hardly believe that a primarily academic background should be disqualifying for federal judgeships: many of the judges I most respect -- including Ralph Winter (for whom I clerked), Frank Easterbrook, Richard Posner, and former judge Michael McConnell -- had just this background. Still, I think that those whose main qualification for the bench is academic would be particularly well served by getting their "hands dirty" as judges or litigators before stepping onto the Supreme Court -- a belief rooted in my preference for technicians rather than "philosopher kings" on the nation's unreviewable highest bench. Fortunately, Kagan's academic work seems to be more technical than theoretical, with an eye toward surveying and synthesizing the existing body of law, which may augur well for her prospects.
That said, I continue to believe that Kagan's record is significantly thinner than those of the other recent successful nominees to the Court. As I wrote in the City Journal piece, "Kagan's record is nevertheless a far cry from those of Sonia Sotomayor, Samuel Alito, Stephen Breyer, and Ruth Bader Ginsburg, each of whom had a lengthy, distinguished judicial career before being elevated to the Court. Nor does Kagan resemble John Roberts, who had a long track record as one of the nation's top Supreme Court litigators." At the time of her nomination, Sotomayor had been a judge almost seventeen years; Alito almost sixteen years; Breyer almost fourteen years; and Ginsburg over thirteen years. John Roberts, like Kagan, had his early nomination to the federal bench blocked in Congress, so he only had a bit over two years' judicial experience at the time he was nominated for Chief Justice; but as a public and private lawyer he had argued 39 cases before the Supreme Court, and he was widely regarded as one of the elite appellate litigators in the country.
Kagan simply lacks this depth of litigation and judicial experience. Indeed, before her last year's service as Solicitor General, her most prominent litigation effort was probably having signed onto a wrongheaded amicus brief in Rumsfeld v. FAIR. (I'm not a big fan of Congress's ability to wield its spending power like a club, but it very clearly was the law of the land as interpreted by the Supreme Court, and the Court unanimously rebuked the position of the "Harvard professors.")
I want to emphasize that I don't think Kagan is "unqualified" for the Supreme Court, by her or my standards. But her record is thin; and as for Roberts and Miers, her lack of a solid paper trail makes her somewhat hard to assess. I agree with Ted that "a nomination standard that punishes candidates for taking public stands and rewards the Robertses and Kagans with cleaner resumes is going to benefit the left more than the right, as it's much easier for a liberal than a conservative to glide through an academic and political career and proving their bona fides without alienating anyone." Unfortunately, I also think that such a nomination standard is rather inevitable, given the "gotcha" politics of modern confirmation hearings. And heated, high-stakes confirmations are themselves an inevitable consequence of "Supreme Court jurisprudence [that] has become unmoored from constitutional text and history . . . [in which] judges have delegated to themselves whole swaths of policy once reserved to elected representatives." Judicial activism thus begets judicial activism, alas.