May 2, 2010


The Next Harriet Miers?: Top Supreme Court contender Elena Kagan, is an able administrator with a shamefully thin record of legal scholarship. Paul Campos compares her to the hapless Bush nominee who got laughed out of town. (Paul Campos, 5/02/10, Daily Beast)

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.

Consider that Obama and Kagan joined the Chicago law faculty in the very same year, after both were Harvard Law students and members of the Harvard Law Review. (The difference between a "crony" and a "colleague" is often something of a sociological mystery.) Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum.

The second criticism of the Miers nomination applies with even greater force to Kagan. As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan's job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

It's easy enough to understand why law professors think that only law professors are qualified for the bench, but the fact is that there's nothing about writing for legal journals that makes you uniquely qualified to be a judge. Indeed, it would be more accurate to say that the more scholarly the personality the less likely to be an effective Supreme Court justice.

The great justices--John Marshall, Joseph Story, Charles Evans Hughes, William Taft, Hugo Black, Earl Warren--have mainly been former politicians. Taft and Hughes, like Ms Kagan, had also been solicitor general, probably the best training for the actual work of the Court (though Thurgood Marshall was an awful justice and Robert Jackson wasn't "great," though, amusingly, he was considered qualified for both jobs and to preside at Nuremberg despite not attending college nor graduating from law school).

Professor Campos is accidentally right though, Ms Kagan is amply qualified for exactly the same reasons Ms Miers was--White House Counsel being, as Llotd Cutler said, “One of the best legal jobs in the're always on the cutting edge of ... this mixture of legal and policy advice all the time.” The idea that the Counsel or the Solicitor General isn't also qualified for the job of Justice is simply bizarre. Though an argument about that persons legal views may be warranted.

Posted by Orrin Judd at May 2, 2010 7:18 AM
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