Groundhog Day in the Senate

The Elena Kagan nomination hearings began in full this morning.  She is presently engaged in a tedious, boring (even if necessary) game of "gotcha" with Senator Sessions over "don't ask, don't tell" and the Solomon Amendment.  No big surprise there.  What I do find quite remarkable is how Senator Session wields his power as he does, in hearing after hearing, yet the nominees remain respectful and deferential all along.  That alone is a test few of us could probably meet, and is perhaps the very best test our constitutional system could device for a Supreme Court nominee.

As I listen, however, another nomination hearing comes to mind, that of Chief Justice Roberts back in 2005.  For a flavor of what is to come, just compare the prepared statements from Roberts and Kagan. They are so similar that it is downright scary.

This is right out of "Groundhog Day."

Hypocrisy (or is it Political Advantage?) and Conservative Attacks on the Courts

Just today, the Supreme Court finally handed out its opinion in McDonald v. City of Chicago, the gun control case.  Unsurprisingly, in a 5-4 decision, the Court reversed the Seventh Circuit and remanded the case for further consideration.  Per Justice Alito, the Court concluded that the Second Amendment is in fact incorporated into the 14th and applicable to states and local governments.

This case comes on the heels of the Kagan hearings, and rumblings from Republican senators about their likely course of action on the Kagan nomination.  Their response at the hearings will certainly include attacks on liberal activist judging and might go as far as to filibuster the nomination.

This is when your head starts to spin and you wonder whether people are as stupid as Republicans presume them to be.

Inflating Elena Kagan

In recent days, Robert Bork announced his intention to publicly oppose Elena Kagan's nomination to the Supreme Court.  Just this morning, The Times reported on the growing  grade inflation taking hold in our nation's law schools.  These stories have much in common.  I can think of at least two commonalities.

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.  

The White House and "Liberal Judicial Philosophy"

On "Face the Nation" two days ago, CBS Chief Legal Correspondent Jan Crawford discussed some documents she unearthed that will "give the White House something else to think about" regarding Elena Kagan's nomination to the Supreme Court.  Bob Schieffer first offered that one of the main reasons that Kagan was Obama's choice was the fact that she would be "easily confirmed."  But these documents proved that Kagan was "a lot more liberal than people realize."  According to Crawford (you might want to sit down as you continue reading, by the way):

These documents have her squarely within mainstream liberal thought.  She’s worried about this conservative Supreme Court undoing rulings that would give a woman the right to an abortion, she’s worried about gun rights, saying she is not sympathetic to an individual’s right to own a handgun, she’s concerned about some conservative rulings scaling back rights of criminals, that’s basic, mainstream liberal thought.

So basically, for a Democratic President to nominate a person to the Supreme Court who would not overturn Roe, Miranda et al., and would agree with Judge Robert Bork that the Second Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" would bring a fight with conservatives that President Obama does not want?  

This, in a nutshell, highlights the challenge facing progressives in modern American politics.  

As Guy has argued, judicial nominations offer an "opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning."  Instead, the White House has fought back the notion that Kagan is a liberal with a vengeance, as if, in Crawford's words, "it's a smear to say their nominee is a liberal."

In the end, judicial nominations are fights over meaning.  Presently, the conservatives hold the clear upper hand: their judges are "paragons of judicial restraint," while liberal judges are "judicial activists" hell-bent on rewriting the Constitution to their liking.  Rather than offer a counter-narrative, President Obama has chosen to accept the conservative narrative as his own.  That is unfortunate.  He is thinking about his political future in the short term, when he should be thinking "long term for the Court and the law and liberal judicial philosophy.”

The Public on Elena Kagan

A recent Gallup poll places Elena Kagan’s nomination in “perilous territory.” According to the poll, only two other nominees polled lower than Kagan at this stage in the process --Harriet Miers and Robert Bork. Perilous territory indeed.

The numbers also break in predictable fashion along party lines: while 68% of Democrats are in favor, 12% in opposition; the numbers are 26% and 51%, respectively, for Republicans. Independents are 43% in support, 33% in opposition.

Now, I don't think this amounts to anything, nor will it lead to a rejection of Kagan's nomination by the Democratically-controlled Senate. But it does raise some very interesting questions about Kagan as a candidate and the nomination process in general in relation to the public.

First, I don't think that Kagan is as impressive a candidate as the President and her close friends would want us to believe, nor do I think she is the best candidate President Obama could have selected. Yet, it is also true that her qualifications are unimpeachable. How does a nominee with Kagan's credentials fare as low as she does? This is a particularly interesting question in light of Bork's and Miers' nomination. Both of these nominations energized the party base and became lightning rods about the future of the Court. I don't think the same can be said for the Kagan nomination.

Glen Greenwald could not be that powerful, could he?

Second, the public's initial support for Kagan was at 40% back on May 10. Over the course of two weeks, this support inched upward, even while the candidate said precious little of any consequence. This is true across party lines, with support for Kagan rising, if moderately, for Democrats, Republicans, and independents alike. Yet 22% of the public still holds no opinion of her. This is the 22% percent the White House and Republican leaders will be trying to influence.

Gallup pollster Jeffrey Jones concluded that "[a]t this point in the process, however, there does not seem to be much in Kagan's background or in the political environment that would prevent her from becoming the first nominee to win confirmation with less than majority initial public backing." This is where the Clinton era papers and the Marshall papers come in. According to Senator Sessions, top Republican in the Senate Judiciary Committee, for example, "Kagan's [Marshall] memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired result than fairly following the Constitution."

Will the public care? Probably not. And in this case, as Senator Sessions seeks to derail a judicial nomination, that might be a good thing.

Are We Witnessing the Beginning of the End for the Voting Rights Act?

 From the time the landmark Voting Rights Act of 1965 became law in 1965, critics have challenged it on constitutional grounds.  Critics complained then that the Act was beyond the powers of Congress, an illegitimate affront to states’ rights and principles of federalism, as well as arbitrary in its coverage.  Months after its passage, the Supreme Court upheld the constitutionality Act; only Justice Black accepted these arguments as applied to the application of the Act to the southern states. 

Through the years, the dissents have grown louder and stronger.  In the Namudno case, decided last June, the Supreme Court made clear that the Act is on borrowed time.  During oral arguments, the conservative wing of the Court voiced its reservations about the constitutionality of the law; and writing for himself and seven other justices, Chief Justice Roberts could hardly hide his contempt for the Act.  When the Court decided the case on statutory grounds, it was only postponing the inevitable.

The question at the heart of the constitutionality of the VRA is easily stated: Is this a world where racial discrimination continues to exist, or have we reached a state of affairs where the Act is no longer a justified intrusion into state affairs?  Too often, discrimination is in the eye of the beholder.  We know how Congress decided this question, when it extended the special provisions of the Act in 2006 for the next 25 years.  In fact, a big part of the hearings were spent focused on this particular question.  The signals from the Court suggest that its conservative wing is not similarly persuaded.

The upcoming challenge to the constitutionality of the Voting Rights Act will not be decided by law as commonly understood, but by the justices’s own visions of the world.  To be clear, this is not a development new to the Roberts Court.  From the moment the justices first upheld the constitutionality of the Act in the Katzenbach cases, the question has been one of judicial will and the justices’ willingness to defer to the findings of Congress about the existence of racial discrimination in American society. This has been true through the years and remains so to this day.  In case after case, from Georgia v. United States to City of Rome to Monterey County, the Court has deferred to the findings of Congress on this complex question.  Whether the Court continues this pattern of deference is the question for the future.  We know where Justice Stevens stood on this question.  It is hard to conclude with any degree of confidence where Elena Kagan stands; and the few data points we do have do not inspire much confidence.  In fact, they make anybody who is serious about the state of civil rights in America "uneasy". 

What is Elena Kagan's Vision of Racial Justice?

The record speaks for itself: Harvard made 32 tenure and tenure-track faculty hires, of which only one was a scholar of color and seven were women. By any metric, these are bad facts.  But what these numbers don't tell us is what lies behind them.  This is where Kagan's defenders spend the bulk of their time, explaining and justifying this "abysmal" record without at the same time undermining Kagan's narrative as "coaliton-builder."

The responses are not surprising: for example, the pool of candidates is shallow; Kagan is deeply committed to racial diversity and showed it in myriad ways; she in fact hired scholars of color for clinical positions; and besides, it is a well-known fact that deans do not have sole  control of the hiring process and, in fact, have much less influence than our argument ascribes to them.

These reponses highlight some of the lessons of the Kagan nomination, namely, the power of networks and the social construction of merit.  In the context of the critique of Harvard's hiring record under Kagan, it is important to understand how faculty hiring in fact works, that is, how faculties make decisions among candidates with an array of competing qualifications.  It is important to understand, in other words, why Kagan's hiring record at Harvard matters.

Cutting the Cards

The last few days have brought a whirlwind of comments about how former Harvard Law School Dean Elena Kagan’s record on tenured and tenure-track faculty hiring of women and people of color may reflect a lack of commitment to racial and gender equality. As I stated earlier, I have been encouraged by the supportive statements from professors who know Kagan well and whom I know to have a strong commitment to racial and gender equality themselves.

Though I am encouraged, I am not entirely persuaded just yet. No matter how hard I try to convince myself, I keep coming back to this one saying, which has meaning beyond just the ordinary poker game: “Trust everyone, but cut the cards.”

You see, it’s not that I do not trust people like Professor Charles Ogletree or Professor Randall Kennedy. I mean, how could I not trust them? They are two of my very own heroes! Believe me, I trust them, but I have to admit that it’s hard for me to fully trust, without more of a paper record, that Solicitor General Kagan will become the next Thurgood Marshall (or even somewhere in that vicinity) on legal issues that concern racial and gender equality. Let me explain why—why I find it necessary to play it safe and cut the cards.

You Cannot Have Your Cake and Eat It, Too

Although I am still cautious, I have been encouraged somewhat by comments from other progressives who know Solicitor General Kagan personally. Most importantly, I was thrilled to hear Kagan emphasize, rather than shy away, from her connection to the late Justice Thurgood Marshall. It made me hopeful that she would follow in Justice Marshall’s footsteps, bringing his same strong sense of justice for the disadvantaged to the bench.

BUT . . .

The Kagan Nomination as a Lesson on the Social Construction of Merit

President Obama has made his choice and, unsurprisingly, Elena Kagan won the Supreme Court derby.  To many people on the left, this is now the end of the discussion and time to rally around Obama's choice.  But this would be misguided on many fronts. The lessons of the Kagan nomination are almost endless.

For example, consider what the nomination teaches us about the Supreme Court appointment process and the power of networks.  To get ahead, one must have the right friends, positioned in the right places.  Consider also how liberals and progressives lost the fight over the Supreme Court long ago (see here and here).  "Conservative" justices are by definition paragons of judicial restraint, strict constructionists who interpret the Constitution as written, not as they wish it to be; "liberal" justices, of course, do exactly the opposite.

Far more important is how the Kagan nomination helps us understand the social construction of merit.  While we carry on as if the twin concepts of merit and qualifications have objective, platonic qualities, the reality is far from that.  The Kagan nomination underscores how mushy and malleable these concepts are.

Why Elena Kagan's Hiring at Harvard Matters

In a post on the widely-read SCOTUS blog, under the topic of "issues that will be mentioned in the Kagan nomination but won't get traction," Tom Goldstein writes,

Race in Harvard’s faculty hiring under Kagan. Some law professors complain that the faculty hires at Harvard during Kagan’s tenure were mostly white. However unfair it is that this issue could get traction, the truth of the matter is that the suggestion that a progressive woman who served as a dean of Harvard Law School harbored some racial bias will not go anywhere. Conservative opponents will also hesitate to legitimize arguments like that.

I like Tom Goldstein, and his move here is a familiar one, but it is wrong. To see how silly this move is, it is tantamount to saying that we called Kagan a misogynist because of the paucity of women hires under her deanship at Harvard. Since I was among the "complain[ants]", I'll take a very quick stab at explaining why Kagan's hiring record matters and why our complaint has nothing to do with intentional racial bias.

The Kagan Network

A few days back, I wondered about Elena Kagan's meteoric rise. My answer was that one cannot underestimate the importance of "privilege and connections." Privilege and connections are also not unrelated to how one becomes the leading candidate for the Supreme Court. One must be smart, work hard,and be focused; all of those qualities must be credited. But "the force of social networks and 'the people you know'" are not only extremely useful but almost necessary. I suggested that some of this explained why Elena Kagan would be nominated for the Court.


According to an insider to the process, this is precisely what happened. The many criticisms on Kagan as a viable candidate did not hurt her prospects. Due to her work in the Clinton administration, an activist suggested that "she has a lot of powerful liberal friends in this town. She has been very effective in using her progressive allies."


This should surprise no one; and yet, paradoxically enough, I am still surprised.

How to Explain Supreme Court Nominations? (or, An Essay on the Art of Becoming Brilliant)

It is beginning to look more and more that Elena Kagan will be President Obama's replacement for Justice Stevens' seat on the Court. This is true in the face of growing skepticism (see, for example, here, here, here, and here) about her nomination. These concerns are outweighed, at least on President Obama's mind, by the notion that she would be "a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions."


The little evidence we have on the Kagan-as-fearless-counterweight view is scant, yet hardly encouraging. In fact, it is the complete opposite. I have in mind here here what James Doty labels her "occasional obtuseness," or what she herself called "panic." The idea that General Kagan would be a coalition builder on the Court while serving as a counterweight to the conservatives justices is nothing more than "unsupported fawning fantasy."


In light of all of this, two questions keep turning up in my head. First, and for all the noise made about Kagan's qualifications, how far would she have gone in her life in the legal academy without the support of critical networks? And second, what does the fact that she is even a candidate to replace Justice Stevens tell us about President Obama's values and priorities, especially in light of his recent call to voters of color to come out and support the party in November?

Race, Hiring and the Lessons of Becoming Justice

From the moment that stories about the inevitable nomination of Solicitor General Elena Kagan appeared on blogs everywhere, a picture soon began to emerge.  For me, however, it was not the picture her supporters are trying to paint for her.  For the more I read, the more she looks like the anti-Sotomayor.

The Telos of Supreme Court Nominations and Vacancies

The debate over Elena Kagan and what seems to be -- according to Tom Goldstein -- her surefire nomination to the Supreme Court provides an important opportunity to reflect on the purpose of Supreme Court nominations.  I want to present two contrasting views.

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.