Commentary Magazine


Topic: Diane Wood

The Supreme Court Isn’t the Harvard Law School Faculty

This report repeats the idea that Elena Kagan was nominated primarily to sway Justice Kennedy to the liberal side of those tricky 5-4 decisions. But if so, does this make any sense? That notion assumes that the Court operates like the Harvard Law School faculty, where nice words, dinner parties, back-slapping, and not revealing her own views served Kagan well. But that’s not how the Court operates:

Tom Goldstein, a Supreme Court lawyer at Akin Gump and author of the widely read SCOTUS Blog, says she has exhibited an “extraordinarily — almost artistically — careful” avoidance of public positions on any matters she might face as a Justice. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade,” Goldstein wrote.

And even if she did have well-established positions, they’d be nothing compared to Kennedy’s. “Justice Kennedy has been on the bench for 40-some years now, including his time on the Ninth Circuit,” says the former clerk. “It’s particularly unlikely that he’s going to fall under the sway of a new judge who’s never been on the court.”

This convoluted argument suggests just how farcical the notion is that a pleasing personality is a satisfactory substitute for developed legal scholarship and brilliant writing (neither of which Kagan has yet demonstrated):

Kagan supporters point to the fact that she convinced some hard-line Republicans to vote for her when she was nominated to be Solicitor General, most notably Jon Kyl of Arizona, the behind-the-scenes GOP power on the Judiciary Committee. Though he’s unlikely to vote for her for the Supreme Court, her ability to win him over, which she did in the course of a lengthy conversation in his office during the nomination process, counts for something.

Huh? So getting Kyl to vote for her once — but not for the Supreme Court — shows she can lure Kennedy into the liberal camp on knotty issues of constitutional and statutory interpretation, and do so better than did Justice Stevens, a man who had been on the bench for decades? It’s a bit absurd. If the Obama team wanted a smart, accomplished jurist who has shown the ability to go toe-to-toe with and persuade conservative judges, Diane Wood might have been a more apt pick. But instead Obama went with someone much like himself, who, come to think of it, hasn’t really been able to persuade conservatives or moderates about the wisdom of his positions.

This report repeats the idea that Elena Kagan was nominated primarily to sway Justice Kennedy to the liberal side of those tricky 5-4 decisions. But if so, does this make any sense? That notion assumes that the Court operates like the Harvard Law School faculty, where nice words, dinner parties, back-slapping, and not revealing her own views served Kagan well. But that’s not how the Court operates:

Tom Goldstein, a Supreme Court lawyer at Akin Gump and author of the widely read SCOTUS Blog, says she has exhibited an “extraordinarily — almost artistically — careful” avoidance of public positions on any matters she might face as a Justice. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade,” Goldstein wrote.

And even if she did have well-established positions, they’d be nothing compared to Kennedy’s. “Justice Kennedy has been on the bench for 40-some years now, including his time on the Ninth Circuit,” says the former clerk. “It’s particularly unlikely that he’s going to fall under the sway of a new judge who’s never been on the court.”

This convoluted argument suggests just how farcical the notion is that a pleasing personality is a satisfactory substitute for developed legal scholarship and brilliant writing (neither of which Kagan has yet demonstrated):

Kagan supporters point to the fact that she convinced some hard-line Republicans to vote for her when she was nominated to be Solicitor General, most notably Jon Kyl of Arizona, the behind-the-scenes GOP power on the Judiciary Committee. Though he’s unlikely to vote for her for the Supreme Court, her ability to win him over, which she did in the course of a lengthy conversation in his office during the nomination process, counts for something.

Huh? So getting Kyl to vote for her once — but not for the Supreme Court — shows she can lure Kennedy into the liberal camp on knotty issues of constitutional and statutory interpretation, and do so better than did Justice Stevens, a man who had been on the bench for decades? It’s a bit absurd. If the Obama team wanted a smart, accomplished jurist who has shown the ability to go toe-to-toe with and persuade conservative judges, Diane Wood might have been a more apt pick. But instead Obama went with someone much like himself, who, come to think of it, hasn’t really been able to persuade conservatives or moderates about the wisdom of his positions.

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Should Conservatives Go to War over Kagan?

Tomorrow Obama is expected to nominate Elena Kagan to the Supreme Court. The question for conservatives is whether they should oppose such a nomination, and, if so, how hard. Chris Good writes:

I asked Carrie Severino, chief counsel and policy director of the Judicial Crisis Network (a conservative group focused on judicial nominees) what conservatives are going to say about Kagan, and what Kagan’s “wise Latina” moment, if there is one, will prove to be.

“She has been much more careful than Justice Sotomayor. She never would have said something like that even if she thinks it. She’s been so careful for so long that no one seems to know exactly what she does think,” Severino said.

Severino attended Harvard Law School, where Kagan served as dean. She asked fellow Harvard people about Kagan’s tenure as dean. “Everyone came back with the same perspective, which was she was careful to never say anything on the record, or off the record, to anyone about her own opinions, so I think she’s been carefully shepherding her image for a long time, possibly ever since her DC circuit nomination by President Clinton, so that’s a long time to effectively live on the short list.”

This is not to say that Kagan would take an originalist view of the Constitution or that her support for law schools’ position on military recruiters doesn’t betray a willingness to conflate liberal policy goals with Constitutional interpretation. But is she as objectionable as a judge, for example, who went to great lengths to support racial quotas and delivered the “wise Latina” speech? Well, one can bemoan her lack of judicial experience and scant writing record but should her nomination be opposed with a full court press?

At this point — and more might be revealed in hearings and upon the examination of her written work — I would think not. She frankly has not proven herself to be as adept a legal scholar as someone like Diane Wood, who would wow and sway the other justices. (It is intellectual argumentation rather than social charm that makes the difference on the Court.) So there could be worse — that is, more “dangerous” picks from a conservative perspective. Kagan has not made her life’s work the promotion of minority victimology. She isn’t without academic qualifications. So, while she’s not a judge conservatives would nominate, it’s hard to conceive of a reason for rigorously blocking her nomination.

This is the price of losing elections: the other side gets to govern and thus help shape the direction of the courts. It’s a reminder to find adept presidential nominees who can win and who will nominate judges at all levels who appreciate the proper role of the courts in our democratic system.

Tomorrow Obama is expected to nominate Elena Kagan to the Supreme Court. The question for conservatives is whether they should oppose such a nomination, and, if so, how hard. Chris Good writes:

I asked Carrie Severino, chief counsel and policy director of the Judicial Crisis Network (a conservative group focused on judicial nominees) what conservatives are going to say about Kagan, and what Kagan’s “wise Latina” moment, if there is one, will prove to be.

“She has been much more careful than Justice Sotomayor. She never would have said something like that even if she thinks it. She’s been so careful for so long that no one seems to know exactly what she does think,” Severino said.

Severino attended Harvard Law School, where Kagan served as dean. She asked fellow Harvard people about Kagan’s tenure as dean. “Everyone came back with the same perspective, which was she was careful to never say anything on the record, or off the record, to anyone about her own opinions, so I think she’s been carefully shepherding her image for a long time, possibly ever since her DC circuit nomination by President Clinton, so that’s a long time to effectively live on the short list.”

This is not to say that Kagan would take an originalist view of the Constitution or that her support for law schools’ position on military recruiters doesn’t betray a willingness to conflate liberal policy goals with Constitutional interpretation. But is she as objectionable as a judge, for example, who went to great lengths to support racial quotas and delivered the “wise Latina” speech? Well, one can bemoan her lack of judicial experience and scant writing record but should her nomination be opposed with a full court press?

At this point — and more might be revealed in hearings and upon the examination of her written work — I would think not. She frankly has not proven herself to be as adept a legal scholar as someone like Diane Wood, who would wow and sway the other justices. (It is intellectual argumentation rather than social charm that makes the difference on the Court.) So there could be worse — that is, more “dangerous” picks from a conservative perspective. Kagan has not made her life’s work the promotion of minority victimology. She isn’t without academic qualifications. So, while she’s not a judge conservatives would nominate, it’s hard to conceive of a reason for rigorously blocking her nomination.

This is the price of losing elections: the other side gets to govern and thus help shape the direction of the courts. It’s a reminder to find adept presidential nominees who can win and who will nominate judges at all levels who appreciate the proper role of the courts in our democratic system.

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type — minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type — minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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Strange Herring

That light you’re supposed to walk into when you’re dying will probably fade if you breathe into a paper bag. Or not.

Tech companies don’t steal each other’s employees. So Justice wants to investigate. Because stealing is … oh I don’t get it either …

Mitt Romney wins straw poll. Now has the most straw of, like, anybody. I mean, an incredible amount of straw. If you’re out and about, and find yourself with a Coke, and you need a straw, I’m telling you — call this guy.

Google knows you’re weird. Now we know you’re weird. Please stop being weird. It’s scaring the children. (And please don’t Google “Does being weird scare the children?”)

Net no longer neutral, decidedly supralapsarian.

What’s the difference between Jack Kevorkian and Josef Mengele? One of them’s dead.

Nachos and Pop-Tarts no longer part of Chicago school menu, consigned to dustbin along with civics, ethics, and penmanship.

Hopefully you didn’t eat during this Ramadan or you would have found yourself bowing before the porcelain god.

You Googled “Does being weird scare the children?” didn’t you? And I asked you nice …

Pizza Hut flying out of Iceland like kids from the Neverland Ranch.

Among the candidates for Justice Stevens’s seat on the High Court are Janet Napolitano, Elena Kagan, Diane Wood, and Merrick Garland. Which one of these is not like the other — or is that a rude question?

If you can’t pay your taxes by April 15, you may be able to pay later. But you’ll have to pay a penalty. And if you can’t afford to pay the penalty, a large man in a mildewy worsted suit will come to your home and cut off your head with a rusty straight razor, seal it in a Zip-lock bag, and force your youngest child to carry it around in a Hello Kitty knapsack until your traumatized family pays up. (OK, I could be mistaken about that knapsack part. Damn Fox News…)

Cirque de Soleil does Elvis. Oh like you don’t want to hear “A Big Hunk o’ Love” as interpreted by a trapeze artist and a contortionist named Capucine.

If you have asthma, stay out of the South. And the Pollen and Spore Collection of the Museum of Natural History.

And finally, the Brat Pack will never die, despite proposed legislation.

That light you’re supposed to walk into when you’re dying will probably fade if you breathe into a paper bag. Or not.

Tech companies don’t steal each other’s employees. So Justice wants to investigate. Because stealing is … oh I don’t get it either …

Mitt Romney wins straw poll. Now has the most straw of, like, anybody. I mean, an incredible amount of straw. If you’re out and about, and find yourself with a Coke, and you need a straw, I’m telling you — call this guy.

Google knows you’re weird. Now we know you’re weird. Please stop being weird. It’s scaring the children. (And please don’t Google “Does being weird scare the children?”)

Net no longer neutral, decidedly supralapsarian.

What’s the difference between Jack Kevorkian and Josef Mengele? One of them’s dead.

Nachos and Pop-Tarts no longer part of Chicago school menu, consigned to dustbin along with civics, ethics, and penmanship.

Hopefully you didn’t eat during this Ramadan or you would have found yourself bowing before the porcelain god.

You Googled “Does being weird scare the children?” didn’t you? And I asked you nice …

Pizza Hut flying out of Iceland like kids from the Neverland Ranch.

Among the candidates for Justice Stevens’s seat on the High Court are Janet Napolitano, Elena Kagan, Diane Wood, and Merrick Garland. Which one of these is not like the other — or is that a rude question?

If you can’t pay your taxes by April 15, you may be able to pay later. But you’ll have to pay a penalty. And if you can’t afford to pay the penalty, a large man in a mildewy worsted suit will come to your home and cut off your head with a rusty straight razor, seal it in a Zip-lock bag, and force your youngest child to carry it around in a Hello Kitty knapsack until your traumatized family pays up. (OK, I could be mistaken about that knapsack part. Damn Fox News…)

Cirque de Soleil does Elvis. Oh like you don’t want to hear “A Big Hunk o’ Love” as interpreted by a trapeze artist and a contortionist named Capucine.

If you have asthma, stay out of the South. And the Pollen and Spore Collection of the Museum of Natural History.

And finally, the Brat Pack will never die, despite proposed legislation.

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Stevens to Retire — a Deserving Nominee This Time?

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats — is what comes from losing the presidency.

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats — is what comes from losing the presidency.

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