About Elena Kagan

The process of confirming a US Supreme Court Justice has became an intensely political process.

Elena Kagan seems something of odd choice for Supreme Court Justice despite being (if not for all that long) Solicitor-General, hence worries about her “lack of form”, so people look to her hiring record to get hints and worry about such matters such as her First Amendment views. Unsurprisingly, people examine her thesis for clues about her judicial philosophy.

Given the importance of the US Supreme Court, it is understandable that there should be debates about the nominee. This compilation of links on the nominee provides some sense of the debate and interest. One can track the various stories folk want to tell about the nominee. People have even angsted about her sexuality.

What caught my eye is that Kagan is the third least popular Supreme Court nominee since Robert Bork (the most unpopular, followed by Harriet Miers: Bork and Miers are the two failed-to-be-confirmed nominees of recent decades). Among the nominees from Robert Bork on, the most popular have been Chief Justice John Roberts, Clarence Thomas and Sonia Sotomayor. If one goes for net support—vote for less vote against—then the three with the most clearly supported were Ruth Bader Ginsurg, John Roberts and Clarence Thomas: Kagan is still the third least net supported after Miers and Bork. Kagan also has the third highest undecideds after Miers and Bork. She just does not positively excite folk in general. So, appealing to something which resonates with popular sentiment is not a reason to nominate her.

That she is Jewish seems to be largely beside the point: on the IQ evidence, three Jewish members of SCOTUS is about right. Though, if she does get confirmed, having three Jews and six Catholics on the Supreme Court will be something of a major marker of the decline of the WASP elite. But she is the epitome of the Harvard-Yale domination of the peak of American government.

That she is a woman is marginally more interesting, but after Justices Sandra Day O’Connor, Ruth Bader Ginsburg and Sonia Sotomayor, that is less exciting that it would previously have been.

So, a bit of a blank slate in terms of judicial “form” and philosophy: if the nominee is a bit puzzling, then one looks at who did the nominating. It is pretty silly to try and class President Obama as a closet socialist or secret Muslim (though it would be good if he would refrain from patronising Israelis about such matters). It is much more sensible to label him as the Chicago corporatist he fairly clearly is: albeit an academically-minded Chicago corporatist. (Which is not the same as being fascist, despite claims to the contrary.)

Kagan is a politically-minded academic (and academic administrator). Is she a corporatist? Is she someone who thinks things should be managed, by the right sort of people? Who knows what is expected? According to this little vignette in a recent essay by Angelo Cordevilla, yes:

If, for example, you are Laurence Tribe in 1984, Harvard professor of law, leftist pillar of the establishment, you can "write" your magnum opus by using the products of your student assistant, Ron Klain. A decade later, after Klain admits to having written some parts of the book, and the other parts are found to be verbatim or paraphrases of a book published in 1974, you can claim (perhaps correctly) that your plagiarism was "inadvertent," and you can count on the Law School's dean, Elena Kagan, to appoint a committee including former and future Harvard president Derek Bok that issues a secret report that "closes" the incident. Incidentally, Kagan ends up a justice of the Supreme Court. Not one of these people did their jobs: the professor did not write the book himself, the assistant plagiarized instead of researching, the dean and the committee did not hold the professor accountable, and all ended up rewarded. By contrast, for example, learned papers and distinguished careers in climatology at MIT (Richard Lindzen) or UVA (S. Fred Singer) are not enough for their questions about "global warming" to be taken seriously. For our ruling class, identity always trumps.

Worried yet?

And a little less surprising as a nominee, perhaps? Or that her nomination does not resonate with the wider American public all that well. But it resonates fine with the right sort of people.

ADDENDA A much more detailed piece which makes a similar point.