Commentary Magazine


Topic: Tom Goldstein

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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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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Flotsam and Jetsam

Harry Reid has even managed to stiffen Olympia Snowe’s spine: “For a second day in row, Democrats failed to open debate on a Wall Street reform bill after Senate Republicans held ranks to block it. The vote was 57 to 41, with all Republicans who were present voting no. Sen. Ben Nelson (D-Neb.) was the lone Democrat to vote no on Monday, and he voted no again. … In fact, some of the moderates who might be most likely to vote yes — such as Maine Sen. Olympia Snowe — have expressed displeasure that Reid is forcing the votes even as bipartisan negotiations on the bill go forward.”

Tom Goldstein thinks Obama will pick Elena Kagan for the Supreme Court. Among his smart observations: “Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.”

Israel isn’t going to buy into “containment” if that’s where Obama is heading with Iran: “Defense Minister Ehud Barak said the world cannot afford to wait too long to see if Iran backs down on its nuclear program while in Washington on Tuesday. In a news conference with Defense Secretary Robert Gates, Barak said he supports the US focus on tougher economic sanctions against Teheran, but he added that only time will tell to what extent sanctions are effective in persuading Iran to give up its nuclear ambitions. Barak says that if the international community waits too long, Iran could acquire a nuclear weapon that he says would ‘change the landscape,’ and not just of the Middle East.”

According to Robert Gates, “Syria and Iran are providing Hezbollah with so many rockets that they are at a point where they have more missiles than most governments in the world.” So what are we going to do about it?

Not remotely the most transparent administration in history: “The Obama administration has only partially complied with congressional subpoenas for information on the deadly November shootings at Fort Hood, Texas. The failure by the Defense and Justice departments to turn over all the requested documentation — which they say they do not intend to do — is not likely to ease the growing tension between some key senators and the Obama administration over the incident at the Army base on Nov. 5, 2009.”

Jeb Bush speaks out against Arizona’s immigration law. “I think it creates unintended consequences. … It’s difficult for me to imagine how you’re going to enforce this law. It places a significant burden on local law enforcement and you have civil liberties issues that are significant as well.”

Michael Gerson: “American states have broad powers. But they are not permitted their own foreign or immigration policy. One reason is that immigration law concerns not only the treatment of illegal immigrants but also the proper treatment of American citizens. And here the Arizona law fails badly. … Americans are not accustomed to the command ‘Your papers, please,’ however politely delivered. The distinctly American response to such a request would be ‘Go to hell,’ and then ‘See you in court.'”

The Obami’s multilaterialism fetish continues: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint. Answerable to virtually no one, the ICC was created by the 1998 United Nations’s Rome Statute to prosecute war and other ‘serious’ crimes.”

Harry Reid has even managed to stiffen Olympia Snowe’s spine: “For a second day in row, Democrats failed to open debate on a Wall Street reform bill after Senate Republicans held ranks to block it. The vote was 57 to 41, with all Republicans who were present voting no. Sen. Ben Nelson (D-Neb.) was the lone Democrat to vote no on Monday, and he voted no again. … In fact, some of the moderates who might be most likely to vote yes — such as Maine Sen. Olympia Snowe — have expressed displeasure that Reid is forcing the votes even as bipartisan negotiations on the bill go forward.”

Tom Goldstein thinks Obama will pick Elena Kagan for the Supreme Court. Among his smart observations: “Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.”

Israel isn’t going to buy into “containment” if that’s where Obama is heading with Iran: “Defense Minister Ehud Barak said the world cannot afford to wait too long to see if Iran backs down on its nuclear program while in Washington on Tuesday. In a news conference with Defense Secretary Robert Gates, Barak said he supports the US focus on tougher economic sanctions against Teheran, but he added that only time will tell to what extent sanctions are effective in persuading Iran to give up its nuclear ambitions. Barak says that if the international community waits too long, Iran could acquire a nuclear weapon that he says would ‘change the landscape,’ and not just of the Middle East.”

According to Robert Gates, “Syria and Iran are providing Hezbollah with so many rockets that they are at a point where they have more missiles than most governments in the world.” So what are we going to do about it?

Not remotely the most transparent administration in history: “The Obama administration has only partially complied with congressional subpoenas for information on the deadly November shootings at Fort Hood, Texas. The failure by the Defense and Justice departments to turn over all the requested documentation — which they say they do not intend to do — is not likely to ease the growing tension between some key senators and the Obama administration over the incident at the Army base on Nov. 5, 2009.”

Jeb Bush speaks out against Arizona’s immigration law. “I think it creates unintended consequences. … It’s difficult for me to imagine how you’re going to enforce this law. It places a significant burden on local law enforcement and you have civil liberties issues that are significant as well.”

Michael Gerson: “American states have broad powers. But they are not permitted their own foreign or immigration policy. One reason is that immigration law concerns not only the treatment of illegal immigrants but also the proper treatment of American citizens. And here the Arizona law fails badly. … Americans are not accustomed to the command ‘Your papers, please,’ however politely delivered. The distinctly American response to such a request would be ‘Go to hell,’ and then ‘See you in court.'”

The Obami’s multilaterialism fetish continues: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint. Answerable to virtually no one, the ICC was created by the 1998 United Nations’s Rome Statute to prosecute war and other ‘serious’ crimes.”

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Flotsam and Jetsam

Obama loses to the movement ridiculed by the chattering class: “On major issues, 48% of voters say that the average Tea Party member is closer to their views than President Barack Obama. The latest Rasmussen Reports national telephone survey found that 44% hold the opposite view and believe the president’s views are closer to their own.”

And the movement sort of looks like America, according to Gallup: “Tea Party supporters skew right politically; but demographically, they are generally representative of the public at large. … Tea Party supporters are decidedly Republican and conservative in their leanings. Also, compared with average Americans, supporters are slightly more likely to be male and less likely to be lower-income. … In several other respects, however — their age, educational background, employment status, and race — Tea Partiers are quite representative of the public at large.” In other words, they are pretty much like all the other voters Obama ignores.

Tom Goldstein’s reading the Supreme Court retirement tea leaves: “To clear up any remaining ambiguity, if you believe or hear anyone else say that Justice Ginsburg may retire this summer, this is the appropriate response: Will. Not. Happen. No other member of the Court has any reason to retire either. By all accounts, each of the Justices is in good health. All of them feel an obligation to serve. Although the Court is divided, it’s not Congress; none is going to pull an Evan Bayh and walk away. Justice Souter’s perspective on his role and tenure was unique. And it’s a good job, so few people want to give it up. (If offered it, you should take it.)”

Liberal reporters discover Obama is a phony.

Robert Gibbs finally says something both funny and true: “I think Michael Steele’s problem isn’t the race card; it’s the credit card.”

Obama vs. Bob McDonnell: “In Washington, President Obama is borrowing, taxing, and spending with abandon — with little apparent concern about the long-term consequences of his unprecedented expansion of government control of the economy and the claims it will make on future earnings of the American people. The president’s agenda relies on one-party power and minimal attempts at compromise. In Richmond, on the other hand, Gov. Bob McDonnell has just closed a $4 billion budget deficit without raising taxes. To do so, he made significant cuts in a budget that had expanded by more than 70 percent in a decade — better than 28 percent for every citizen in Virginia (in inflation-adjusted dollars).”

Gabriel Schoenfeld on Obama’s Iran policy: “The Obama administration is dithering. Bent upon getting a Security Council resolution rather than assembling a coalition of the willing, the White House and American policy is being held hostage by Russia and most of all by China. Here’s an informed prediction: if Beijing does come around and support a new round of sanctions, it will be hailed by the White House as a major breakthrough: peace in our time. But the actual sanctions will be weak to worthless. China has too much at stake in Iran as a source of energy. It also sees an opportunity to poke us in the eye. … One question that should be asked is what we will say the day after Iran tests its first nuclear device.”

Obama loses to the movement ridiculed by the chattering class: “On major issues, 48% of voters say that the average Tea Party member is closer to their views than President Barack Obama. The latest Rasmussen Reports national telephone survey found that 44% hold the opposite view and believe the president’s views are closer to their own.”

And the movement sort of looks like America, according to Gallup: “Tea Party supporters skew right politically; but demographically, they are generally representative of the public at large. … Tea Party supporters are decidedly Republican and conservative in their leanings. Also, compared with average Americans, supporters are slightly more likely to be male and less likely to be lower-income. … In several other respects, however — their age, educational background, employment status, and race — Tea Partiers are quite representative of the public at large.” In other words, they are pretty much like all the other voters Obama ignores.

Tom Goldstein’s reading the Supreme Court retirement tea leaves: “To clear up any remaining ambiguity, if you believe or hear anyone else say that Justice Ginsburg may retire this summer, this is the appropriate response: Will. Not. Happen. No other member of the Court has any reason to retire either. By all accounts, each of the Justices is in good health. All of them feel an obligation to serve. Although the Court is divided, it’s not Congress; none is going to pull an Evan Bayh and walk away. Justice Souter’s perspective on his role and tenure was unique. And it’s a good job, so few people want to give it up. (If offered it, you should take it.)”

Liberal reporters discover Obama is a phony.

Robert Gibbs finally says something both funny and true: “I think Michael Steele’s problem isn’t the race card; it’s the credit card.”

Obama vs. Bob McDonnell: “In Washington, President Obama is borrowing, taxing, and spending with abandon — with little apparent concern about the long-term consequences of his unprecedented expansion of government control of the economy and the claims it will make on future earnings of the American people. The president’s agenda relies on one-party power and minimal attempts at compromise. In Richmond, on the other hand, Gov. Bob McDonnell has just closed a $4 billion budget deficit without raising taxes. To do so, he made significant cuts in a budget that had expanded by more than 70 percent in a decade — better than 28 percent for every citizen in Virginia (in inflation-adjusted dollars).”

Gabriel Schoenfeld on Obama’s Iran policy: “The Obama administration is dithering. Bent upon getting a Security Council resolution rather than assembling a coalition of the willing, the White House and American policy is being held hostage by Russia and most of all by China. Here’s an informed prediction: if Beijing does come around and support a new round of sanctions, it will be hailed by the White House as a major breakthrough: peace in our time. But the actual sanctions will be weak to worthless. China has too much at stake in Iran as a source of energy. It also sees an opportunity to poke us in the eye. … One question that should be asked is what we will say the day after Iran tests its first nuclear device.”

Read Less




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