Sunday, May 09, 2010

elena kagan (updated version)

I think it's a competent pick but not an especially inspired one. I don't doubt she'll get through although most Republicans will probably vote against her. There'll be some grumbling from the left as well but not enough to matter.

My reservations related not to Kagan personally--I've met her and she seems nice and certainly smart enough--but to my view of the Court. I think that liberals' problem is less one of numbers than of ideological momentum, which has been largely on the conservatives' side for a while. With due respect to Kagan, I don't see her changing that. She seems to be being picked because she's liberal enough, relatively young, and can probably get through unscathed--good reasons but I don't think the best ones. What liberals need is an intellectual counterweight to Scalia and so far I don't see that here, although you never know: at her age we could be talking about the Kagan Era someday.

An interesting angle, relatively unexplored in the mainstream press, is the emerging dominance of the University of Chicago Law School. One way to measure the importance of an institution is its presence on both sides of major debates, the way (e.g.) that Yale and Harvard provide leaders for both parties, or the New York Times has published leading liberal and conservative writers. The President, Barack Obama, is a liberal who taught for many years as a Chicago lecturer. The leader of the conservatives on the Supreme Court, Antonin Scalia, also taught there as did many major conservative scholars. Cass Sunstein, arguably the most important liberal legal scholar of his generation, taught there as well and now occupies a key administration position. Now the next member of the Supreme Court, although thought of as primarily a Harvard product, will be someone who's teaching career started at Chicago, too. That's an awful lot of clout for a relatively small institution, not to mention one with a prevailing conservative bias, and whose liberals had to hone their skills in an essentially conservative environment. Then again, maybe that's why they've been so successful

Addendum: A number of conservative bloggers have been supportive of Kagan on the theory that she's "open-minded," hired a lot of conservatives at Harvard, and is generally less bad than the other likely picks. To the extent that this has based on a serious reading of the kind of justice she'd be, that seems fair and logical. To the extent that conservatives are supporting a known liberal candidate because she hired them or their friends, it sounds more like . . . collaboration. The point is not an idle one, because conservatives frequently complain that they are discriminated against or not taken seriously in the legal academy. But if they can be bought off this easily, why should they be? I'll be back with more on this issue in a couple of days.


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