The Irrelevance of Kagan’s Modest Scholarly Record
posted by Lawrence Cunningham
How many scholarly articles (five, four or three) has Elena Kagan, the President’s Supreme Court nominee, published? How many years had she been an academic before becoming Solicitor General last year (eight, eighteen or something in between)? What does it matter?
In her career, Kagan has written a total of about 350 pages of legal scholarship that has been cited a total of about 600 times. People seem to disagree about what this scholarly oeuvre adds up to: close to nothing (e.g., Paul Campos), something quite substantial (e.g., Eugene Volokh), or not particularly remarkable in either direction (e.g., Erin Miller).
People also disagree about which of her various pieces count as major articles (the foregoing commentators count three, four and five, respectively) and even disagree about how to define her years in the academy (eight, netting out all government and decanal service, or as many as 18, dating from her first appointment).
There is no mystery about what Kagan has published—a full list including every sort of piece appears at the SCOTUS site; a more selective one appears at the Harvard Law site; another appears below. Disagreement concerns what it means—like the couple receiving marriage counseling in Woody Allen’s Annie Hall.
In my view, as a scholarly record, though it warranted awarding promotion and tenure to a junior faculty member, it would not warrant offering Kagan a lateral tenured appointment at most national law schools in the country today. But that opinion and the record are simply irrelevant to the question of her qualifications to serve as Associate Justice of the Supreme Court of the United States.
The scholarly part of Kagan’s career can be summarized briefly (and legal scholars familiar with how legal scholarship is usually placed will notice absence of any indication that Kagan is familiar with that process):
(1) Kagan’s tenure file at Chicago consisted of: a modest Supreme Court Review piece in 1992 to start her career, a book review in a non-traditional journal in 1993, two modest pieces in her home school’s law review in 1993 and 1995, and a culmination of those two in that same home journal in 1996; and
(2) post-tenure, after service in government, Kagan returned to academia—to Harvard—where her record consists of two 2001 pieces, an impressive co-authored piece in Supreme Court Review and a wildly-ambitious and successful piece in her home school’s law review (where she was then moved to serve as Dean).
That’s a perfectly fine scholarly record but not exactly one to which young legal academics should aspire. The tenure file may have been satisfactory but was not overwhelming. And the aggregate today would not count clearly favorably toward an appointment as a lateral tenured faculty member at most national law schools. True, Kagan’s public service and administrative record likely would count favorably for an appointment (and many Deanships will await Kagan if her current ambitions disappoint) but the net scholarship now is light.
Yet it does not matter that appointment as a lateral tenured law professor on this scholarly record would be uncertain. What it takes to be considered a successful law professor is totally different from what it takes to succeed as a judge or justice (or Dean, for that matter).
Elena Kagan’s Law Review Articles (Reverse Chrono Order)
Presidential Administration, 114 Harvard Law Review 2245 (2001) (when she was a professor at Harvard; 122 pages; cited 306 times)
Chevron’s Nondelegation Doctrine, 2001 Supreme Court Review 201 (2001) (co-authored; journal edited and published by Chicago law faculty, where she previously taught; 56 pages; cited 80 times)
When a Speech Code is A Speech Code, 29 UC Davis Law Review 957 (1996) (8-page symposium piece; cited 4 times)
Private Speech, Public Purpose The Role of Governmental Motive in First Amendment Doctrine, 63 Chicago Law Review 413 (1996) (when she was a professor there; this paper builds on the two listed below discussing the R.A.V. case; 82 pages, cited 119 times)
Confirmation Messes: Old and New, 62 Chicago Law Review 919 (1995) (15-page book review, while she was a professor at Chicago; cited 10 times)
A Libel Story, 18 Law and Social Inquiry 197 (1993) (21-page book review) (cited once)
Regulation of Hate Speech and Pornography after R.A.V., 60 Chicago Law Review 873 (1993) (23 pages; cited 27 times)
The Changing Face of First Amendment Neutrality: R.A.V. v. St. Paul . . ., 1992 Supreme Court Review 29 (1992) (cited 30 times)
May 11, 2010 at 4:31 pm
Posted in: Current Events, Law School (Hiring & Laterals), Law School (Scholarship), Supreme Court
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Responses (11)
Darren Hutchinson - May 11, 2010 at 5:18 pm
I absolutely agree that a “thin” or “thick” scholarly record is irrelevant to an academic’s qualification to sit on the bench. Several commentators, however, have pointed to her relatively thin record to raise questions about her judicial philosophy and ideology. I think this is a legitimate approach. If her paper trail was longer, the public would know a lot more about Kagan’s views of the law. I suspect that the senators will try to question her on these issues…..
Gerard Magliocca - May 11, 2010 at 6:09 pm
I agree with David Brooks’ column in today’s Times, which makes the point that her whole career involves avoiding saying anything that might offend anyone (in scholarship or elsewhere). It’s unfortunate that this timidity is being rewarded.
dave hoffman - May 11, 2010 at 6:16 pm
I don’t see this as timidity — at least, no more than the Chief Justice’s similar lack of controversial talk. Maybe- just maybe- she is simply a careful person, who thinks at length before she writes. Not a blogger, to be sure, but not everyone can be!
Jeremy Patrick - May 11, 2010 at 6:27 pm
As a scholar and former law prof who has published a lot of articles in a lot of low-tier law journals, I would be *over the moon* to have pieces land in the Harvard Law Review or the U. Chicago Law Review. Perhaps her publication record is slim compared to other profs at top-ten schools (I have no idea on this), but her record is certainly something to which “young legal academics” should aspire to as it would pretty much guarantee someone a tenure-track position at a quality (even if non-Ivy League) law school.
Darren Hutchinson - May 11, 2010 at 6:46 pm
Dave Hoffman: Law review articles are not blog entries! Good scholarship can take years to produce. i would say that Kagan had a lot of time to think things over. Again, the fact that she is not prolific does not disqualify her from the bench, but I think people can rationally assume that she was being guarded.
Jeremy: Law students frequently publish professors at their “home” institutions. A lot of Kagan’s articles (all?) are in journals published by Chicago/Harvard (her two home institutions).
Lawrence Cunningham - May 11, 2010 at 7:01 pm
Re David Brooks: he seems to have a firm opinion on nearly every subject. That makes him a Platonic fit for his job as op-ed writer at a newsapper. I would not want to see him as a judge in any courtroom where I had an interest.
Howard Wasserman - May 11, 2010 at 7:14 pm
Are we missing a question here? Must we look also look at her scholarly record for what it tells us about how good she was at her previous job as an academic and scholar? If so, then the debate people are having about her scholarly merits (qualitiatively and quantitatively) are relevant to the debate over her nomination.
anon - May 11, 2010 at 10:25 pm
Wait, so her scholarship record is irrelevant because it doesn’t involve judging. Her deanship is irrelevant because it doesn’t involve judging. Her public service is irrelevant because it doesn’t involve judging. So what are we supposed to look at to determine whether Kagan is qualified to be a Supreme Court Justice? Unless you think that anybody who has a Supreme Court clerkship is qualified to sit on the court as a justice, then her record as a scholar is pretty much all we have to look at since there is nothing else.
You cannot make we should confirm Kagan by making irrelevant her entire record. You instead made the case that Glenn Greenwald has been screaming for the last two months: that Kagan has no record that demonstrates sufficient qualification for the job.
Vladimir - May 11, 2010 at 11:30 pm
I find it curious that no one has mentioned her teaching (her “famously excellent” teaching). Is that not as important as her scholarship for these (as opposed to internal promotion) purposes?
Let’s try a thought experiment to help flesh out the relevance or irrelevance of Kagan’s scholarly record. Let’s say that she had been denied tenure at Chicago. Would that be at all relevant to her qualifications for the Court?
anotheranon - May 12, 2010 at 9:50 am
I don’t think the critics of Kagan’s scholarship are arguing that her thin record disqualifies her from being a justice (many good Justices weren’t scholars), they are just asking what exactly it is she has done that merits being a Justice? Apart from getting-along-well-with-powerful people, and being smart, her only significant accomplishment was being a pretty good Dean at Harvard — and the question then becomes, is this enough to be a Justice? (By this test, BTW, the Chief Justice was only marginally more qualified, having been a very good appellate litigator and then spending 2 years on the DC Circuit).
anon - May 12, 2010 at 12:26 pm
The fact that other justices weren’t scholars isn’t relevant to the question of whether Kagan’s scholarly record merits appointment to the Court. One mode of assessing how good someone would be for a prospective job is to look at how good they were at their previous jobs. Kagan has essentially held four: 1) dean, 2) scholar, 3) teacher, and 4) government lawyer. It is generally agreed that she was a wild success as a dean. She claims she is a famously excellent teacher, and many but not all of her former students agree. That leaves us with how she was as a scholar and a government lawyer. This is not to say that one has to occupy some combination of these roles in order to be a justice. Had Kagan been a trial lawyer, an appellate lawyer in private practice, or a lawmaker, we might reasonably ask how well she fulfilled those roles. But we only have the roles she in fact played to assess, which would seem to make her scholarly record important.
Nor is this to say that someone who had never succeeded in any field of legal practice might not be a good justice. Learned Hand was apparently not an overwhelming success as a lawyer in private practice, and Abraham Lincoln was not terribly successful as a politician prior to being President. But saying that someone with a thin record of achievements in the field in which she is being considered for promotion would nonetheless be a good choice for promotion smacks of a request for the public trust that doesn’t fly in politics in this day and age, even it is commonplace in everyday life. Thus, she is put forward as having achieved highly in all four professional roles she has acted out in her life. Since that is the administration’s claim, it hardly seems beyond the pale to assess its truth.
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