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May 10, 2010

Early thoughts and questions about SCOTUS nominee Elena Kagan

As detailed via many links at How Appealing, it is soon to be official that President Obama will nominate former Harvard Law School Dean and current Solicitor General Elena Kagan to replace retiring SCOTUS Justice John Paul Stevens.  Here are my first thoughts and questions in response to this nomination.

As a matter of biology and biography, I am very pleased with the choice.  For my daughters' sake, I had hoped President Obama would add more women to the Supreme Court, and I am very excited that the Court will likely soon have three female Justices for the first time ever. 

In addition, for substantive law reasons, I think younger is better for SCOTUS these days.  Lots of new technology issues are likely better understood by a Justice who knows her way around a computer, and thus SG Kagan's relative youth is a plus.

Relatedly, I cannot help but like seeing yet another Princetonian and HLS grad added to the Court.  This has to be good for my alma maters, both of which I love and respect greatly.  And, as regular readers know, I have long been hoping for a Justice without judicial experience.  Plus, to have a new Justice with academic inclinations certainly feels like a plus to me.

Finally, Kagan is largely a blank slate on criminal justice issues, though she likely got a bit of a crash course on some federal criminal justice matters in her relatively short stint as SG.  I think this blank slate state is a good thing for the Court's future sentencing jurisprudence, but this is most speculation.  And speaking of speculation, here are some follow-up questions for readers:

1.  What can/should we take away from the work of the SG's office under Kagan's leadership?

2.  Who is likely to replace Kagan as SG?

3.  What will be the first major criminal justice case on which Kagan has a decisive vote?

UPDATE: The President's official introduction of his nominee this morning stressed both biology and biography (including the biographies of SG Kagan's grandparents and parents and siblings).  And, interestingly, while President Obama noted Kagan's ability to bring conservatives to HLS as Dean, new SCOTUS nominee Kagan stressed her time serving bosses Mikva, Marshall, Clinton and Obama that should signal to the left that their heroes made a habit of hiring Kagan for critically important professional roles.

In addition, to throw in one last point on biology, I must not my pleasure with the prospect of having another Justice who is shorter than me (which is not easy).

May 10, 2010 at 08:16 AM | Permalink


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Kagan fits with Obama's view of the federal judiciary as an institution that should engage in what John Hart Ely labeled a "representation-reinforcing theory of judicial review."

Unlike really any modern president, Obama thinks big thoughts about how government should work and has tried to operationalize his approach from the start of his administration. For example, his strategy on health care legislation was about reinvigorating the legislative process which, in his view, is central to republican government because it energizes and gives voice the electorate. For Obama, overly active (or, if you like, "activist") judicial review either from the left or right, cuts off that energy and voice with the result of desempowering the electorate, delegitimizing republican government, and breeding distrust of institutions.

So, Kagan (like Sotomayor) will likely turn out to be an Elyesque interpretivist. Whether that is good news for sentencing, therefore, really depends on what the political branches and the USSC do. If they operate the way, in theory, that they are supposed to Kagan will let them do their jobs. If they do not, she will not.

Posted by: Moshe Avram | May 10, 2010 9:49:35 AM

"2. Who is likely to replace Kagan as SG?"

If you believe the conspiracy theory surrounding Rosen's article on Sotomayor, it would be his brother-in-law, Neal Katyal.

Posted by: . | May 10, 2010 10:15:37 AM

"2. Who is likely to replace Kagan as SG?"

Katyal is an excellent suggestion. How about Larry Tribe as "Acting"? No way he'd be confirmed.

Posted by: Moshe Avram | May 10, 2010 10:32:37 AM

Moshe Avram. Is this the type of trash they are spewing at Harvard these days that Doug prattles on so fondly about. It true that the university's system of governance is essentially feudal in nature; but I at least when I was at uni no one argued that this feudal system is what makes modern governments run. I keep hearing about how Obama is a big picture kind o' guy yet oddly enough it's the same old I-95 crew that keeps winning.

What is good for the elite universities is normally bad for the country. That's always been the case whether the lean left or right or in Obama's case prehistoric.

Posted by: Daniel | May 10, 2010 11:44:07 AM

In this context, Daniel, I would love to hear more concerning your claim that "what is good for the elite universities is normally bad for the country." In particular, I wonder if you were vocally supportive of GWB's selection of Harriet Miers for SCOTUS because of her non-elite-university history. Relatedly, shifting from law to politics, I am wondering if your view leads you to support, say, Palin over Romney for the GOP nomination or for a non-ivy-leaguer to replace Kagan as SG.

As the product of various elite universities --- including The Ohio State University, which I consider elite for an array of (self-serving?) reasons --- I genuinely want to better understand the view (held by many?) that what is good for elite universities is normally bad for the country.

Posted by: Doug B. | May 10, 2010 12:03:15 PM

Kagan is sure to try dodging questions at the confirmation hearing. All nominees do. One of the absurd reasons they give is that they may have to deal with that issue if and when appointed. That is as good a reason as saying, "I can't answer that because I don't like eating tuna fish."

In any case, the first question she should be asked after the usual stonewalling is, "Dr. Kagan, will you please come back tomorrow with a list of provocative questions that you think will help us determine your fitness to be on the Court?"

Emeritus professor, philosophy of law, Eastern Michigan University.

Posted by: Sidney Gendin | May 10, 2010 1:01:41 PM

Doug. In all honestly, since I am not a Republican, I don't pay much attention to nuances of Republican politics. If I were Republican, yes, I'd probably be more sympathetic to Palin over Romney. As for GWB I can't think that I was ever vocally supportive on anything that Harvard man did. The same, alas, is proving true of Obama.

To your larger question as to why what is good for elite universities is bad for the country I'd invite you to engage in a close reading of The Metaphysical Club by Louis Menand. While I think the book is problematic in some areas I think he does a solid job, especially in the final chapter, of outlining how the intellectual culture of America's elite universities is not consonant with progressive ideals. As he points out near the beginning of the book, only one member of Harvard ever joined the Union army during the civil war and he was a German immigrant. Throughout our entire history elite academia has always played a conservative if not a reactionary role. Harvard and Stanford and the rest of the Ivy league are only "liberal" if you mean that term in a feudal sense of the word. That's even more true today that it ever was before.

Another good work, although much more intellectually complex, is Post Modern Bourgeois Liberalism by the late Richard Rorty. In some ways Menand's book is simply Rorty for the chattering classes.

Posted by: Daniel | May 10, 2010 1:42:13 PM

On the third question, a case on which little attention has been paid since the granting of cert. several weeks ago is Thompson v. Connick. Depending on your perspective, it's either a criminal justice case or a civil rights case: The issue is whether the Orleans Parish DA's Office can be sued under Section 1983 for the Brady violations of its prosecutors. (The question on which cert was granted frames the case - which went to a jury verdict for Thompson - as a "single issue" Monell claim.) Has wide and fascinating implications both for the future of civil rights litigation and the arena of criminal justice oversight. It also might be a litmus test for whether the SG's position in Osborne is properly attributable to Kagan herself. - JL

Posted by: Jennifer Laurin | May 10, 2010 3:13:34 PM

Organization Kids: Kagan and Prof. Berman both fit the mold pretty well


Posted by: Law faculty factory fellow | May 11, 2010 8:47:28 AM

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