Commentary Magazine


Topic: Robert Clark

RE: The Supreme Court Isn’t the Harvard Law School Faculty

Regarding the difference between faculty schmoozing and Supreme Court persuasion, it’s worthwhile to examine what it is that Elena Kagan did at Harvard. This report gives us a peek, suggesting that her accomplishments have been “overstated”:

Much of the work to defuse the bitter atmosphere, which included ideologically driven standoffs over whom to hire, took place under Ms. Kagan’s predecessor, Robert Clark, dean for 14 years. He calmed tensions and expanded the faculty. …

She was helped by flush times at Harvard. She hired 43 faculty members during her tenure and boosted the total number of full-time professors from 81 to 104, a growth spurt partly enabled by a thriving endowment. She also benefited from a record-setting $476.5 million fund-raising drive that began under Mr. Clark, which she brought to a successful conclusion. More money makes hiring easier, because one appointment isn’t seen as a trade-off for another.

Well, she did some things on her own:

[Charles Fried] also credits her with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. “It was an absolute stroke of genius,” Mr. Fried said.

Genius? I think most employers have figured out that free food usually is a winner with employees. But maybe Justice Kennedy can be swayed by sandwiches and soda. And then there are these contributions:

Ms. Kagan is credited with improving student life through upgrades to the physical campus, such as a revamped student center, an upgraded gym and an ice-skating rink that doubled as a volleyball court. And she offered small things, like free coffee outside classrooms and free tampons in the women’s restrooms.

OK, OK, we get the point. This is all very commendable for a dean but utterly irrelevant to the job of being a Supreme Court justice. More revealing will be what she accomplished as solicitor general, and we should begin to focus on that — the number and quality of her arguments. Then we might learn whether she is really up for the job.

Regarding the difference between faculty schmoozing and Supreme Court persuasion, it’s worthwhile to examine what it is that Elena Kagan did at Harvard. This report gives us a peek, suggesting that her accomplishments have been “overstated”:

Much of the work to defuse the bitter atmosphere, which included ideologically driven standoffs over whom to hire, took place under Ms. Kagan’s predecessor, Robert Clark, dean for 14 years. He calmed tensions and expanded the faculty. …

She was helped by flush times at Harvard. She hired 43 faculty members during her tenure and boosted the total number of full-time professors from 81 to 104, a growth spurt partly enabled by a thriving endowment. She also benefited from a record-setting $476.5 million fund-raising drive that began under Mr. Clark, which she brought to a successful conclusion. More money makes hiring easier, because one appointment isn’t seen as a trade-off for another.

Well, she did some things on her own:

[Charles Fried] also credits her with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. “It was an absolute stroke of genius,” Mr. Fried said.

Genius? I think most employers have figured out that free food usually is a winner with employees. But maybe Justice Kennedy can be swayed by sandwiches and soda. And then there are these contributions:

Ms. Kagan is credited with improving student life through upgrades to the physical campus, such as a revamped student center, an upgraded gym and an ice-skating rink that doubled as a volleyball court. And she offered small things, like free coffee outside classrooms and free tampons in the women’s restrooms.

OK, OK, we get the point. This is all very commendable for a dean but utterly irrelevant to the job of being a Supreme Court justice. More revealing will be what she accomplished as solicitor general, and we should begin to focus on that — the number and quality of her arguments. Then we might learn whether she is really up for the job.

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The Problem with Law Schools

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

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