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The Kagan Nomination

It has leaked that the White House will nominate Elena Kagan to Justice Stevens's seat. Some thoughts, ranging from important to trivial:

  • It is mysterious why the idea of Kagan is getting heat from the left. (E.g., Greenwald @ Salon.) There is no reason to think that Kagan won't be a reliable vote on the left of the Court, and one begins to suspect that these sort of attacks are to slant the story that Kagan is somehow a "moderate" voice to blunt Republican attacks on living-constitution jurisprudence. Liberals should be thrilled with this pick: it's someone who's going to give them a reliable vote for what is likely to be two to three decades. (Walter Dellinger—who would've been my first choice on the Democratic side of the aisle—certainly understands this.)
  • Attacks on the left that Kagan is a Democratic version of Harriet Miers don't seem reasonable, either. It's fair to say that Kagan's academic record isn't especially distinguished, but there's much more there there than there was with Miers. Kagan has held government positions where real legal thinking was required and a much better resume than Miers. (Update: Eugene Volokh makes a good case that Kagan's academic publishing record is above average. I'm persuaded.)
  • A lot has been made of the idea that Obama should nominate someone who isn't already a judge. I'm of mixed feelings about that, but I absolutely agree with Ed Whelan that, in this case, "Kagan's record manages to replicate the primary supposed defect of the judicial monastery--isolation from the real-world lives of ordinary Americans--without conferring the manifold benefits of judicial experience."
  • Ed Whelan's thoughts on Kagan's recusal obligations are also important reading. I'm not as bothered by the implications as Ed, though: a Supreme Court appointment is for a lifetime, and the fact that Kagan will need to recuse herself from dozens of cases for a few years is no reason to preclude a former solicitor general from joining the Court. We don't want to deter top attorneys from accepting a nomination to the SG's office for fear of the political implications for their judgeship.
  • There's something sad about the speculation that Diane Wood was not nominated because she was "too old" at 59. If we're excluding more experienced candidates in their late 50s for fear that they won't be able to serve three decades, it is a good argument for the eighteen-year term limit.
  • An early New York Times story on the nomination suggested that Republicans who supported Kagan's nomination to Solicitor General would be hard-pressed to vote against her ascension to a lifetime appointment on the Court. This seems a foolish piece of analysis: the earlier case was an appointment to an executive branch position to advocate on behalf of the Obama administration's positions in court, where the president should have a great deal of discretion to make a choice. (If anything, the 30+ votes against Kagan for Solicitor General suggest a battle in the Senate.)
  • The Times is quick with a lengthy bio.
  • That bio touches on an underreported aspect of Kagan's career: she turned down tenure at Chicago Law to work in the Clinton administration. Chicago declined to offer her tenure when she left the administration. Kagan got the last laugh: when she became dean at Harvard, she successfully recruited several top conservative legal scholars to the faculty there, emulating Chicago at the same time that Chicago, instead of pressing its comparative advantage, veered left. Students like me who used to turn down Harvard Law to go to Chicago stopped doing so, and Chicago dropped in the US News & World Report rankings from #2 (ahead of Harvard) to bouncing around #5 and #6. (But see Dan Markel on Kagan's hiring record.
  • I'm not sure how it is that I arrived at University of Chicago Law School in 1991, the same year that Barack Obama, Elena Kagan, and Larry Lessig started teaching there, and missed out on taking classes with any of them. And I dropped Gary Becker's Microeconomics class the day before he won the Nobel, too.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.