Courting controversy

President Obama's nomination of Elena Kagan to replace John Paul Stevens on the Supreme Court has created some controversy among those who identify as liberals, or who take views that make them more or less "liberal" (I'm not trying to pigeonhole anyone; I'm just using labels of convenience). Their concern, expressed, for example, by Paul Campos here and here, can be boiled down to three points:

1. Her appointment suggests a certain amount of cronyism and represents the continued dominance of Ivy-Leaguers on the Court. (This concern has also been expressed by, among others, the libertarian David Bernstein here.)
2. She has published very little and yet got tenure at a prestigious law school. One conclusion that people like Mr. Campos seem to draw is that she's an intellectual lightweight, or at least someone who isn't yet prepared for the big leagues of the court, especially since she has no experience as a judge.
   
3. Following the point in number two, liberals seem concerned that because she has published so little, it is hard to know how she might come down on controversial issues, and the fear is that she'll be more moderate than they'd like. A corresponding fear/gripe is that Obama is in the position to nominate someone much more obviously liberal and that after this years congressional elections, this opportunity will have been largely diminished.
   

I, too, am concerned about the hold that the Ivy League appears to have on political power in this country (it also seems to have a lock on the more coveted academic jobs, too: one of the mythologies that non-Ivy League aspirants to academia like myself are sometimes prone, rightly or wrongly, to express in our unguarded moments is that a dissertation at a non-Ivy League institution needs to be groundbreaking as well as well done while an Ivy League dissertation needs to be only well done.)

I'm slightly more concerned about the opaqueness of her political views. Since Supreme Court justices exercise power that can only be described as political (whether this is an optimal state of affairs or not I won't address), I think it is important to know a potential justice's views. Will she be as liberal as the liberals hope? Will she be more moderate? Some evidence seems to suggest that she's at least open to be a moderate: apparently as a teacher, she entertained a diversity of perspectives in the classroom and as dean of Harvard Law School, she hired a lot of self- and other-identified "conservatives." (I should stress that if this is true, I personally think it's potentially a good thing. My only concern here, to the extent that it is a concern, is that her judicial philosophy is unclear.)

I'm not particularly concerned about her lack of experience and her (apparent) lack of scholarship. It is not unheard of for a non-judge to be appointed to the Court. Of course, there'd be a learning curve, but I imagine there'd be one at any rate. Perhaps a non-judge would provide a sorely needed perspective (and perhaps not....there's a lot I don't know about Kagan or being a Supreme Court justice).

As for scholarship, the charge is that even though she has published some things, it should not have been enough to earn tenure and it was unremarkable. I haven't read any of her scholarship, and I had, I probably wouldn't be well equipped to evaluate it: although I am acquainted with some legal scholarship, most of it is in the realm of legal history, and I tend to use it more or less instrumentally rather than critically (that is, I read it to uncover, for example, the evolution of concepts relevant to the laws of "combination" and "restraint of trade" and "conspiracy" than to I do to critique scholars' understanding of the law). Still, here are a few thoughts:

• A lot of scholarship that is published for tenure tends to be of very poor quality.
• My understanding is that in some professions, citation counts (how many times one's scholarship has been cited by others) is one factor in determining tenure decisions. In other words, scholars supposedly are in the position where they have to shill their wares like some huckster just to get notoriety. (It's not unlike my occasional practice of going onto well-traveled blogs like the Volokh Conspiracy and linking to a post in order to gain more traffic. When I do so, I try to make it clear to the commenters what I am doing, and I try only to link to posts that are relevant to whatever topic is under discussion.)
• Kagan's demonstrated strengths appear to be those of a teacher and an administrator (and as a Solicitor General, her current position in the Obama administration). I don't see why these strengths need to be derided as making her not-obviously suitable for a justice-ship any more than any other non-judge is not-obviously suitable.
  

I suspect--I'm almost certain--that her connections got her tenure on what is standardly considered a paucity of scholarship, and the guang-xi network, American style, is to my mind, unfortunate, to say the least. But she seems to have acquitted herself well, and I'm not inclined to criticize her nomination.