Some Questions About Elena Kagan

Elena Kagan, currently the Solicitor General of the United States, is widely rumored to be President Obama's top choice to succeed Justice Stevens on the Supreme Court. The most compelling and least compelling aspect of a Kagan nomination is that we do not know where she stands on many of the issues that would come before the Court. For those of us who would prefer a strong left-of-center nominee, the basic message is that we should trust that Kagan will not be the left's version of David Souter. I understand why Kagan is politically attractive as a nominee. But I am nevertheless left with some questions.


First, how can it be the case that a long-time academic, someone who was a tenured member of two of the nation's top law schools, does not have a paper record? What it means to be an academic, almost by definition, is to have a paper record. Kagan started teaching at the University of Chicago in 1991 and received tenure there in 1995. She was also a tenured professor and former Dean at the Harvard Law School.

To satisfy my curiosity, I conducted an author search on the legal database westlaw. Kagan has published three substantive and major articles: Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chicago L.Rev. 412 (1996); Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201 with David Barron; Presidential Administration, 114 Harv. L. Rev. 2245 (2001). In addition to these three, she has also published a short book review, Confirmation Messes Old and New; a short essay, Regulation of Hate Speech and Pornography after RAV; and a short symposium piece, When a Speech Code is a Speech Code.

Now one might ask, how can one get tenure at not one but two of the nation's top law schools with what would appear to an outsider to be a thin publication record? I don't know the answer to that question. [UPDATE: Some commentators have persuasively argued that the articles were extremely thoughtful and pathbreaking. Having read at least three pieces, they are good.  In addition, others have pointed out that she was an excellent teacher.   So, I don't think this question has been answered.] But when you compare Kagan's publication record to that of Harold Koh's, who was Dean at Yale Law School at about the same time Kagan was Dean at Harvard, and whose name has also been floated as a potential SCOTUS nominee (though apparently much less seriously), the difference is striking. Koh has published over 100 articles and has authored or co-authored eight books. Granted, Koh has been in teaching about six years longer than Kagan. But that does not account for the vast difference in their publication records. So, even though I am surprised that an elite legal academic can have a thin paper record, I accept that as fact with respect to Kagan. [UPDATE: Some commentators have argued that Kagan's public service in the Clinton administration and as Dean should not count against her.  The point here is that she spent a lot of time outside of the traditional academic research track.]

Second, what is the justification for putting someone on the Supreme Court about whom we know so little? This is a question for which the sole answer cannot be because she is confirmable. That she can be confirmed is an important consideration, but it cannot be the sole criterion.   Moreover, as Glenn Greenwald intimates, we created a false construct by writing off compelling nominees with a paper record in favor of less compelling ones without a paper record.

Granting that we know very little about Kagan, what do we make of the facts that we do know? Here are some data that gives me pause about Kagan. When Elena Kagan was Dean of the Harvard Law School, she hired 29 tenured or tenure-track faculty members. But she did not hire a single black, Latino, or American Indian faculty member. Not one, not even a token. Of the 29 people she hired, all of them with one exception were white. Under Kagan's watch Harvard hired 28 white faculty members and one Asian American.

One of Kagan's purported qualifications for the Supreme Court is that she is a consensus builder. The chief evidence for that contention is that she broke the hiring logjam at Harvard and made it possible for Harvard to hire conservatives. It might sound absurd to some, but I will accept the point that one of Kagan's chief selling points is that she assured that Harvard did not discriminate ideologically. I am personally gratified that Harvard Law School is not closed to conservative faculty members. I support ideological diversity and would not want to see qualified individuals discriminated against on the basis of ideology.

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 29 32 new hires, only six seven were women. So, she hired 23 25 white men, 5 six white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That's a racist and sexist statement.  It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan's tenure.  To believe otherwise is to harbor troubling racist views. 

Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I'd like to see the evidence. Moreover, what other questions would we have about Kagan if we knew more about her and her views?

A supposed positive of nominating Kagan is that she does not have a paper record. The obvious political benefit is that there is very little to serve as fodder for one's political opponents. On this issue I think the Democrats may be making a long-term mistake. A confirmation hearing is an opportunity to present and defend a vision of constitutional decision-making and of judging to the country. This is what G. W. Bush was able to do with now Chief Justice Roberts in particular and Justice Alito to a lesser extent. Bush and Roberts together presented a conservative vision of the Constitution and the role of the judge. And they defended that vision with great success. Roberts's umpire metaphor continues to serve as the predominant narrative for the role of the judge.

By contrast, liberals and progressives have failed to offer and defend an alternative vision. A reason for that failure is their refusal to take these opportunities to offer an alternative. Instead, we are likely to get a nominee with no paper record and who is willing to say whatever will appease the conservatives on the judiciary committee in order to gain confirmation. We will then argue why the Court is moving so fast to the right.

When George W. Bush nominated Harriet Miers for the Supreme Court he was forced to withdraw the nomination because of opposition from his right flank. Conservatives would not be mollified notwithstanding the winks and nods from the White House that Miers would be a reliable conservative vote on the Court. To their credit, conservatives would not be satisfied with Miers even if she would represent their views on the Court. Nor were they pacified by the President's aversion to having a political fight. In fact, a fight is precisely what they wanted. What they wanted was someone who could articulate and defend persuasively a conservative vision of constitutional law and the role of the judge. They were playing a long-term game and would not accept a short-term gain that would sacrifice the long-term objective. Bush withdrew Miers and substituted Samuel Alito.*

I am not saying that any of the current potential nominees are the left's version of Harriet Miers. But are any of them John Roberts? If they're not, don't we deserve our John Roberts?

*Earlier version of this post inaccurately stated that John Roberts was the substitute for Miers.