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Editor: Thomas A. Smith
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Monday, May 10, 2010

Kagan commentin'
Tom Smith

Sorry, that's the best I could do.  But there is a lot of interesting commentary on the Kagan nomination over at volokh.  I will note that our young President referred to her "appointment".  He really should say "nomination" since the appointment comes only after the advice and consent of the Senate. It's a bit presumptuous.  Oh well.

I am actually rather relieved by the nomination of Kagan.  She is evidently open minded enough to have promoted the appointment of some conservative leaning law professors at Harvard, which is no small thing.  In fact, I can't think of any other top five law school that has deliberately set out to correct at least a bit an ideological imbalance and then actually followed through.  Has any other law school ever said, we don't have enough conservatives?  Harvard may have become pretty lefty, but still.  The fact that she makes the left wing of the Democratic Party nervous is much in her favor.  She sounds like a liberal to be sure but one at least capable of considering more than one side of the story.  Indeed perhaps I should have been rooting for a left wing ideologue as she would be less likely to influence the all important swing votes on the Court. (As our foreign readers may not know, the American system of law is entrusted to one or two justices on the Supreme Court who rather than follow any predictable jurisprudence, make up various balancing tests and vague standards as they go along to bridge the differences between those justices who follow more predictable and developed views of the law.  This has the disadvantage of making the law vague, unprincipled and intellectually vacuous, but on the upside it makes the justice in the middle terribly powerful and important, not to mention the law clerks thereof.)  Discussion of her scholarship linked to above suggests it is not bad at all; not that many articles, but the ones she did write sound like they were quite influential.  It could be being a justice on the Court will be just the thing to allow her to become as prolific a writer upon the law as she would hope.  And it's also true you don't necessarily want the most creative, academic types to be your judges. You should probably much rather have the Supreme Court consist of nine randomly chosen senior lawyers than you would the nine most cited members of the legal academy, at least if you had to live in the country they were judges of, rather than merely read their opinions.

Ed Whelan on the nomination here.  I disagree on some points.  But I think the larger political issue is, does it make sense for the GOP to try to make the Dems expend political capital on getting Kagan confirmed, or not?  If the answer is not, then I think job of the GOP in the Senate is to look at Kagan carefully, make sure there are no buried landmines, skeletons in closets, and so forth, enquire as to her judicial philosophy, and then vote.  It is offensive to me that she refused to allow military recruiters on campus because of don't ask don't tell, but this would be true of anybody Obama would nominate.  This was pretty much the universal view of the legal academy.  It took an Act of Congress and judicial action to overbear it.  Republicans can squawk about it if they like but whether that helps them or not, I don't know.  As to the point that Kagan is too young and inexperienced, I don't agree.  From what I can see, age and experience is overrated in an appellate judge.  More important I think is mental energy and a willingness to do the work and apply the law.  The sort of wisdom that comes with age is useful in many jobs but I'm not sure judging is really one of them.  I think a vigorous middle age is about ideal and that it goes down quickly after that.  Indeed, I would favor a mandatory retirement age for federal judges of say, 70.  Many, many federal judges stay on much longer than they should.  Perhaps financial incentives encourage that; I'm not sure.

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Comments

"As our foreign readers may not know..": I'm sure that many of us know that your Supreme Court rules on judicial whim - indeed, sometimes, whimsy.

Posted by: dearieme | May 10, 2010 1:25:49 PM

But most people who indulge in whim and whimsy at least realize that is what they are doing.

Posted by: Tom Smith | May 10, 2010 1:49:08 PM

I have nothing against Kagan, but I am quite amazed at the number of people who will say, sure she's a red hot liberal on every single issue, but she appointed some conservative faculty so she's OK. This sounds a lot like collaboration to me. Did the CLS types support Bork because he voted to tenure some liberals at Yale, or wrote clerkship letters for some left-wing students? It's not wonder law school conservatives are in a weak position if they think this way.

Posted by: mike livingston | May 11, 2010 1:36:53 PM

I'm just saying he might have picked somebody worse. I agree she will be a reliable liberal. I think it would be difficult to filibuster her. But maybe not.

Posted by: Tom Smith | May 11, 2010 5:15:18 PM

Sotomayor was a great pick from my point of view, because she needed so little "humbling." Kagan is likewise not such a bad choice. Pray tell, should we wish for a stronger,better prepared or more formidable designee?


I have no information concerning her personal life, but I consider the popular perception of her irregularity another plus. It does not strengthen the threat she presents to causes I favor, but quite the opposite, energizes my team.

Kagan LOOKS like a caricature of a woman, who is, shall we say, not of the marrying kind. This will have an unvoiced, even unconscious, effect on popular consciousness, confirming a feeling of otherness, of estrangement, which wille felt in November, and beyond.

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