Saturday, May 15, 2010

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.


Anonymous said...

Being a graduate from an Ivy League school is not a negative. The negative is that the Supreme Court is losing Educational Diversity amongst its members. A very simple example could be vanilla ice cream. Everyone likes vanilla ice cream. The problem arises when you limit your diet exclusively to vanilla ice cream. You get lots of calcium, but you lose out on all of the other needed vitamins and minerals to live a healthy productive life. The same can be said about losing the diversity of knowledge and diverse perspectives that people from other institutions can provide. The majority of the Supreme Court Judges should not be Ivy League graduates.

Anonymous said...

The following applies to Kagan, just as it did to Sotomajor.

This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk's collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor's diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

Harvard -

Chief Justice John Roberts
Anthony Kennedy
Antonin Scalia
Stephen Breyer
Ruth Bader Ginsburg (Harvard, Columbia)


Samuel Alito - Yale JD 1975
David Souter
Clarence Thomas - Yale JD 1974
Sonia Sotomayor - Yale JD 1979

Northwestern Law School.

Justice John Paul Stevens

The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.

Yale - Bush Sr. - 4 years
Yale Law - Clinton - 8 years
Yale - Bush, Jr. - 8 Years
Harvard Law - Obama - 4 - 8 years

When we consider that our Nation has potentially twenty - eight years of Presidential influence from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation's policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top Colleges and Universities in America.

theolderepublicke said...

Dear Anonymous,

I agree in principle that just because someone comes from an Ivy League education is not necessarily bad. In fact, I agree with your point about the negative being the loss/paucity of "educational diversity" on SCOTUS. In fact, that is, I hope, what I said in my post; at least it is what I meant to say!

As for vanilla ice cream, I confess it is my favorite flavor (next to cookies and cream), and as long as I eat it to the exclusion of, say, chocolate, I am missing out on important choco-vitamins and other essential nutrients.

Concerning the editorial you quote from: I, too, had misgivings about the fact that Sotomayor did not necessarily represent the educational diversity I would have liked.

Thanks for your comments!