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The Irrelevance of Kagan’s Modest Scholarly Record

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11 Responses

  1. Darren Hutchinson says:

    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…..

  2. Gerard Magliocca says:

    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.

  3. dave hoffman says:

    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!

  4. 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.

  5. Darren Hutchinson says:

    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).

  6. Lawrence Cunningham says:

    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.

  7. Howard Wasserman says:

    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.

  8. anon says:

    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.

  9. Vladimir says:

    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?

  10. anotheranon says:

    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).

  11. anon says:

    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.