Litigation

The Kagan nomination, May 11

By Ted Frank

• Senator Inhofe is the first to oppose Kagan, citing her anti-military stance at Harvard and lack of judicial experience.
• Kagan's record is largely inscrutable—but she did come out in favor of less limited inquiries into Supreme Court nominees in the University of Chicago Law Review in 1995. See also Ed Meese on the nomination. But now that she's on that hot seat, Kagan has backed off of her academic position.
• But fascinatingly, as Matt Marcotte has suggested, the "Kagan must be stopped!" fulminations have largely come from the left. This is in part because the right is largely resigned to their impotence in the Senate, but in part because folks like Greenwald, Lemieux, and Turley are being foolish: they would prefer Democrats take a huge political hit for putting an outspoken ideologue on the Supreme Court without getting anything extra from that vote that Kagan wouldn't provide. Larry Lessig understands this. (Indeed, the right has likely shot itself in the foot by being so vocal about Diane Wood, who is both considerably more moderate than Kagan and nine years older.) More generally, 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, so it's helpful to the right that the left are the ones complaining here. (On that note, Todd Zywicki has an amusing post how partisan bickering blocking Roberts and Kagan from an additional eight years of experience on the D.C. Circuit probably helped their Supreme Court candidacies.)

  The leftists who oppose the nomination on cronyish grounds have the tiniest bit of a point about the incestuous unseemliness of the Harvard/Yale Law academic axis, but it's worth noting that some of the most influential judges on the left were (intelligent) presidential cronies. E.g., Felix Frankfurter (whose resume is a lot like Kagan's).

• I'm less concerned than Eric Turkewitz about Kagan's two years at Williams & Connolly. While time as a BigLaw junior associate should influence one's view of civil justice (it certainly did for me), someone who's marking time until she can step on the academic or political ladder almost certainly had little say over her assignments or even the arguments she made in her briefs, if she was allowed to write briefs. As in the case of Goodwin Liu, such junior-associate experience should be treated as essentially meaningless cannon-fodder work.
• I suggested yesterday that Kagan's academic record was mediocre. I retract that after Eugene Volokh's persuasive analysis, which also tells us a bit about Kagan's First Amendment jurisprudence.

Full post as published by Point of Law on May 11, 2010 (boomark / email).