First, they both make sense. On Kagan, it is clear that this is the time when critics of the nomination must do whatever they can to derail it. Needless to say, this is a complicated calculation; to derail this nomination is not to say that Obama would appoint somebody better the second time around. In fact, he might decide to do exactly the opposite, just as President Bush did with the appointment of Justice Alito. The Kennedy nomination is also instructive.
Grade inflation is also quite rational. It makes sense to keep up with the market, especially if the end result will be a competition for jobs in a tight labor market. Who would you rather hire: a student with a 3.0 grade point average from a good law school, or a student with a 3.5 gpa from a great law school? I think the answer is clear. Now, I understand that gpa's are artificial measures, which only serve to compare similarly situated students but not students across a larger spectrum. This is why class rankings are the best way to compare students from different institutions. But tell that to the recruiters.
It is also a question of institutional morale. As quoted in the Times piece, why call your own students "loser[s] at the end," which is what low grading curves essentially do? To Stuart Rojstaczer, who studies grade inflation, this means that you instead inflate grades, that is, "you artificially call every student a success." But that's not quite right. By raising your grading curve, you are only recognizing that your measures of student achievement are artificial and quite fallible, and worse yet, that those who are called upon to interpret these measures are unable to do so fairly and reasonably. What purpose does a low grading curve serve in the hiring world, after all? Or a high one, for that matter?
These insights shed interesting light on the Kagan nomination. Apparently, Kagan as a 1L did not perform all that well. During her first semester, she received a B- in torts and a B in criminal law. If the conventional wisdom is right, this is hardly the stuff of brilliant minds and Supreme Court nominations. Not to worry, however, because these are just grades, after all, proxies for a larger and far more complicated story. It is all about how we choose to tell this story. According to Frank Michelman, in a letter of recommendation:
"I am looking at her transcript as I write, and there's just no doubt that her first-year spring-term grades ... not the fall-term ones, are the true reflection of her capacity and her learning. Whatever was in her way on those fall term exams, it wasn't affecting her class performance even during the fall, and evidently was gone by exam time in May."