It looks like Obama is set to pick Elena Kagan for the open Supreme Court slot. Glenn Greenwald has previously laid out why this is a terrible choice. University of Colorado Law Professor Paul Campos explains how reminiscent she is of Harriet Miers:
At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan’s scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it’s unlikely to offend anyone in a position of power.
Take, for example, Kagan’s article, “Presidential Administration,” which appeared in the Harvard Law Review in 2001. The piece is dedicated largely to reviewing the extant literature on the power of Congress and the president to control the actions of administrative agencies. Kagan’s thesis consists of presenting a fairly standard view within administrative law scholarship—that relatively tight presidential oversight of administrative agencies can have beneficial regulatory effects—as if it were a novel argument. She maintains, on the basis of thin evidence, that such oversight increased significantly under the Reagan and Clinton presidencies, and concludes with the tautological insight that presidential oversight can be a good thing if it doesn’t go too far.
Kagan’s work reminded me of Orwell’s observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, “this book inspires in me no thoughts whatever.” The bottom line regarding Kagan’s scholarly career is that there’s no there there. This is a problem not only because we have no evidence regarding what her views might be on almost any important legal question, but also because Kagan’s supposed academic achievements are being touted as the primary justification for putting someone who has never been a judge on the nation’s highest court. Now the fact that Kagan is more or less an academic nonentity would be of merely academic interest if she possessed unrelated but compelling qualifications for ascending to the nation’s highest court. But what else, exactly, has she done?
Besides her law-school career, Kagan’s resume consists of four years in the Clinton White House, where she was Associate White House Counsel—a full rung down from Harriet Miers’ position in the Bush White House—and Deputy Director of the Domestic Policy Council, and six years as the dean of Harvard’s law school. (Last year, Obama chose her as his solicitor general).
Apparently her main accomplishment as dean at Harvard was raising a lot of money, which, given that it’s the Harvard Law School, sounds roughly as impressive as managing to sell a lot of pot at a Grateful Dead concert. (She’s also been given credit for improving the collegial atmosphere at the school, a.k.a., getting a bunch of egomaniacs to engage in less backstabbing, which anyone familiar with law school faculties can attest is not a negligible accomplishment. Whether it’s a sufficient basis for putting somebody on the Supreme Court is another matter.)
It seems clear Kagan is a bright person and an able administrator. But Harriet Miers was those things as well: She had a long and successful career in the private practice of law, she was the first woman president of the Texas Bar Association, and she was the top lawyer in the White House for several years prior to her nomination to the Court.
Miers’ nomination was derailed by two complaints: that her primary qualification was that she was a “crony” of the president, and that nobody knew what views she had, if any, on the vast majority of questions facing the Supreme Court. Both criticisms are just as relevant to Kagan’s potential selection.
Greenwald has a longer list of those pointing out the inadequacy of this pick.
UPDATE: Well, that didn’t take long. The “Obama is the messiah and I dare not question his judgment” point of view has already been shared in the comments:
As for trusting Obama’s judgement over my own? Yeh .. he is smarter than I am and has access to a lot of good advice. That is why I voted for him.
Perhaps most revealing of all: a new article in The Daily Caller reports on growing criticisms of Kagan among “liberal legal scholars and experts” (with a focus on the work I’ve been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows: “The reality is that Democrats, including liberals, will accept and push whomever Obama picks.” Yesterday on Twitter, Matt Yglesias supplied the rationale for this mentality: “Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama.”
Just think about what that means. If the choice is Kagan, you’ll have huge numbers of Democrats and progressives running around saying, in essence: “I have no idea what Kagan thinks or believes about virtually anything, and it’s quite possible she’ll move the Court to the Right, but I support her nomination and think Obama made a great choice.” In other words, according to Chemerinksy and Yglesias, progressives will view Obama’s choice as a good one by virtue of the fact that it’s Obama choice. Isn’t that a pure embodiment of mindless tribalism and authoritarianism? Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush’s selection of Harriet Miers to what progressives are almost certain to do with Obama’s selection of someone who is, at best, an absolute blank slate.
Exactly. The idea that progressives need to support Obama’s decisions without question just turns us into what has been so dangerous about the current incarnation of the Republican Party.
UPDATE 2: Lawrence Lessig’s post at HuffPo is a good rebuttal to those who say that Kagan is unqualified. I’m still in agreement with Greenwald that Obama should be faulted for not picking a justice with a more well-established background, but Lessig does make me feel a little more optimistic about what is my primary fear – that Kagan will end up being the direct opposite of David Souter, a justice who ends up shifting the court in the opposite direction from what was expected by his/her supporters.
UPDATE 3: Adam Serwer finds some evidence that Kagan may be better on executive power issues than expected, but wonders why the Administration hasn’t been more forthcoming over it.