Thought experiment: what if Kagan is a professional?

President Obama's nominee for the Supreme Court, Elena Kagan, has undergone a lot of criticism for her lack of experience. One particular variant of this criticism is the fact--noted by Paul Campos in this article--that she has hardly made known her political views on hot button political/legal issues, such as campaign finance reform, to name only one. She apparently has held her cards close in her (apparently very sparse) publications and even in her conversations with colleagues. Campos writes

Her thin sheaf of academic writings addresses only a handful of very narrow technical legal issues in an especially cautious and non-revelatory fashion. She has never published a word not intended for an academic audience. Her work as a lawyer—that is, as someone who is professionally obligated to advocate the positions of her employer, whether she agrees with them or not—tells us nothing about her own views.

He goes on to say

Over the past two months, I’ve spoken to nine of Kagan’s former colleagues at the two law schools where she has taught. All of these people, some of whom support Kagan’s nomination and some who oppose it, insist they know nothing about Kagan’s views on any significant legal or political issue—and I believe them.

One (mostly unspoken) insinuation here is that Kagan might have, for a long time, been seeking the Supreme Court nomination and carefully crafted her writings and even conversations to avoid controversy. Another possibility is that she lacks intellectual curiosity, or that she has a too mechanistic (and therefore somewhat unrealistic) view of the American legal system and how it is supposed to work. All these points are at least plausible given what we now know about her, and if they have any validity, it is a cause for concern.

But there is another possibility. Maybe Kagan adheres to a standard of professionalism that commands one not to wear one's political views on one's sleeve. Much of her academic career, as I understand it, was as a college administrator (I believe she was president Harvard Law School, but stand to be corrected). In that position, one's political views are not always relevant or of first importance.

None of this necessarily vitiates Mr. Campos's argument. One of his biggest beefs about the Supreme Court nomination process is that nominees rarely, if ever, can honestly articulate their political views, even though the post to which they are nominated is overtly political. Indeed, part of his criticism of Kagan is that she once wrote about the process as a vapid exercise and now is engaging in the same vapidity.

I think I am cynical realistic enough to know that paucity of information on Kagan's political orientation is at the very least suspiciously convenient and that as long as the culture of selecting judges remains what it is now, we are to expect nominees with similarly sparse and uncontroversial histories. I also realize the difficulty of being "non-political" as an academic or even as an administrator (the "personal is political" and "the death of objectivity," and all that). And if Kagan really was a conscientiously minded professional who did her job as "neutrally" as possible because it was her job, then maybe we don't necessarily want that type of person on the court. (The culture of professionalism isn't all it's cracked up to be, and it's not necessarily a good thing: witness the way academic departments knowingly tolerate professors who have long since given up on even their most basic duties and who are simply going through the motions because they have tenure.)

Still, what if?

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.