Friday, May 7, 2010

Elena Kagan?

Politico reports that President Obama will soon nominate Elena Kagan to the Supreme Court. If this story is true, this would confirm earlier reports which suggested that Obama wanted to avoid a fight with his next Court nominee.

As an academic who received tenure at the University of Chicago and Harvard Law School, Kagan has a surprisingly sparse paper trail. She was not very prolific as a scholar, which means that her record leaves very little room for controversy.

 Professor Paul Campos, however, believes that Kagan's thin record should go against her appointment:
Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago's own faculty—and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it's true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard's dean, and for never having written anything intended for a more general audience, either before or after taking that position.).
That Kagan has not written much legal scholarship does not mean she is not bright or qualified for the bench.  But it is worthy information to consider in an appointee. For Obama, it probably weighs in favor of Kagan.

Glenn Greenwald of has written extensively on some of Kagan's more conservative views, especially concerning presidential power during war. During her confirmation hearings for the Solicitor General post, Kagan took a broad view of presidential power and indicated that the president could indefinitely detain suspected terrorism suspects -- an issue against which Obama campaigned. 

The Court nomination process is often so demoralizing, and I refuse to  add to the thicket by demonizing a candidate. I am, however, concerned that in the interest of avoiding a fight or avoiding doing something "liberal," President Obama is caving when he should do the exact opposite.

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