Litigation

Kagan and Calabresi

By James R. Copland

In this morning's Washington Examiner, I write that those on the right who hope and those on the left who fear that Kagan will be more conservative than one might expect are likely to be disappointed. That she was an effective dean who made conservative hires and treated conservatives with respect is admirable, but it says little about how she'd rule as a justice; and it doesn't -- as her proponents would suggest -- portend some special ability to influence her colleagues. In making this case, I point to another effective dean with a similar record of hiring and being collegial toward conservatives, my old torts professor (and intellectual proponent of the litigation explosion), Guido Calabresi:

I'd guess that these hopes and fears are both misguided, since the job of being a dean has very little to do with the job of judging. Some 20 years before Kagan worked to resuscitate the law school at Harvard, Guido Calabresi did the same at my alma mater, Yale, where as dean he recruited conservative scholars like Bob Ellickson, John Langbein and Alan Schwartz.

Notwithstanding that record, once Calabresi was nominated by President Clinton to the 2nd Circuit Court of Appeals, he fell comfortably in with that court's left flank. And his chumminess with right-leaning faculty and students as dean hardly translated into sway over his judicial brethren, as evidenced by his colleagues' rather frequent decisions to reverse his opinions by a full en banc court.

It's very likely that Kagan will follow a similar path. Yes, she may be more enthusiastic about executive assertions of political prerogative over administrative agencies than is palatable to some on the left. But when it comes to hot-button issues like abortion, affirmative action, sexual orientation, and the environment, Justice Kagan is likely to come down just where we'd expect, given her upbringing on Manhattan's Upper West Side, her Ivy League education, and her service to politicians Michael Dukakis, Bill Clinton, and Barack Obama.

Likewise, don't expect Kagan to hold magical sway over the justices to her right. In her first-ever argument before the Supreme Court -- last year's Citizens United campaign-finance case -- she bungled out of the gate, earning immediate and sharp rebukes from Justices Antonin Scalia and Anthony Kennedy. (Kagan had, like Obama in his State of the Union speech, misleadingly conflated corporate campaign contribution limits with independent expenditures conveying political ideas.)

Full post as published by Point of Law on May 12, 2010 (boomark / email).