printEugene Volokh thoroughly and soberly assesses the scholarly record of BHO’s SCOTUS nominee, Elena Kagan, and concludes:
“Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.
… On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp. 8–9). But I like them a lot.
The articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.
As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. …
Kagan’s First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. I can’t tell for sure whether this flows from a judgment about what’s more useful scholarship, from a largely precedent-respecting temperament, or from agreement with the underlying free speech caselaw. But my guess is that it at least in part reflects a general comfort with the current precedents, and a lack of desire to shift them much.
…On so-called ‘hate speech’ and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much”
[SNIP]
Read the complete post.
“The enemy of my enemy may not be my friend,” writes Stephen Bainbridge, “but she’s probably acceptable”: “I don’t know very much about Elena Kagan other than that a couple of Harvard folks for whom I have a lot of respect think highly of her. When I look at some of the lefties who are opposing her and their reasons for doing so, however, I’m tempted to conclude that she’s the most acceptable–from my perspective–candidate Obama is likely to put forward for the SCOTUS. You can tell a lot about a person from who their enemies are.”
Yes, Old Olby doesn’t much like Kagan.
Update (May 11): The issue of Kagan’s scholarship, although narrow, is relevant as it goes to her intellect. I am pretty sure that if Volokh is impressed—if not necessarily in agreement—with some of her journal papers, that she is intellectually well-equipped. This is more than we can say about SotoSetAsides Mayor.
Kagan’s statism is, on the other hand, guaranteed too. I believe this is a prerequisite for a SCOTUS nomination.
Update II: I’m sorry that Kagan, “as dean of Harvard Law School, … aggressively restricted the U.S. military’s ability to recruit some of the brightest law students in the country” only “because Dean Kagan opposed President Clinton’s ‘Don’t Ask, Don’t Tell’ policy.”
She should have kicked the military bloodsuckers off campus as a matter of principle.
The lawful reach of army recruiters notwithstanding, I’d want to keep those body snatchers away from gullible university kids. The excellent series—it’s non-political but patriotic—“Army Wives” depicts the ugliness of recruitment. Granted, in “Army Wives,” the job of picking up vulnerable poor kids, pumping them up, and shipping them off to serve as cannon fodder in our wars is depicted as a noble one.
Update III (May 12): She’s a racist; the good kind—which is that she is more likely to privilege merit than skin color. And how do we know that she probably sins by trending toward meritocratic hiring? From the fact that as Dean and solicitor for BHO, she has hired few “blacks and browns,” as her detractors refer to themselves.
So that our hopelessly Republicanized and Palinized readers know, the hue and cry over Kagan’s “racism” is coming from the Stupid Party:
“31 of Kagan’s 32 Hires at Harvard Were White,” write the screeches at “RedState.com.” These people have few principles, but worse; they’re bereft of brains.
Besides which, if you are going to be a stickler for quotas, Kagan is probably in the color-coded clear, since her hiring practices no doubt comport, at the very least, with the proportional representation in the general population of the groups she has affronted.
“Wingnuts Furious About …. Kagan Not Hiring Enough Black People/Women,” notes Wonkette. It doesn’t take much—one feeble-minded fem—to recognize Republican frailties.
I quite like that she’s failing the wise Latina test.
Update IV (May 13): What I observed tongue-in-cheek about Bush and the left actually applies to all the actors in the farce of our politics:
“Left-liberals … believe a judicial activist is someone who reverses precedent. George Bush thinks a judicial activist is someone who disobeys the President.”
Bush, BHO and their respective political gangs and judicial picks don’t go by the Constitution; they go by judicial precedent. That’s the thing that is revered. To reverse precedent is considered a heretical.
Not worth filibustering and not worth voting for. Another interchangable statist.
Ms. Kagan’s judicial temperament, were there any to take note of, would be of far more importance than her scholarship.
Having attached her name to a government brief in United States v Stevens stating:
“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
That is a lovely proposition for a thesis or monograph but ’value of the speech and ‘societal costs’ are the stuff of scholarly Leftist’s wet dreams – the power to decide – categorically.
Who cares? The Constitution is not a complicated document by design. As such it shouldn’t require a pin headed “scholar” to interpret.
Three points:
(1) The odds of the military finding Harvard Law grads who want to give up either clerking for a federal judge or starting on Wall Street at over $200,000 / year to instead work negotiating procurement contracts for the Department of Defense or prosecuting military rapists in Okinawa is about the same odds as a Lubabvitch Rabbi finding lunch at the Dixie Pig Barbeque.
(2) Elana Kagan’s lost struggle to keep the military off sacred Harvard soil happens to be the only attempt to stand for the THIRD amendment. Needless to say, the right wingers who do not like Amendments 1,4,5,6, etc, don’t think much of the 3rd either. Consequently, I would not trust them with Amendment 2.
(3) I did read that Elana K was RELATIVELY good on IP issues (e.g. allowing parodies of “copyrighted” materials…. ) compared to many of the other potential nominees.
As far as the military is concerned I have been wondering what they would possibly find at Harvard. I doubt that bunch of creeps, freaks and Ivy League weirdos would be intersted in a military career. I can’t imagine what the military would see in them.
The real travesty is that the military is allowed to recruit at High Schools. After being spoon fed government propaganda for the better part of 13 years, many enthusiastically (and literally) sign their lives away before they’ve even begun to live them.
Whatever Kagan’s stance on the 1st Amendment, her view of the 2nd Amendment leaves much to be desired, to say the least. From another article at Volokh’s site via James Oliphant at The Chicago Tribune:
According to records at the William J. Clinton Presidential Library in Little Rock, Ark., she also drafted an executive order restricting the importation of certain semiautomatic assault rifles.
With regards to Military recruiting IIRC Harvard is a private college so they should be allowed to have who ever they want or don’t want on campus
For public schools if you are going to allow recruiters for Biz , Colleges etc. on campus, then the Military should be allowed to recruit on campus also, either ban them all or let them all in
Ol Roy just trying to be consistent here
The larger issue is that when a President puts forth a nominee with meager qualifications(as Obama did with Sotomayor) the rest of his nominations are, justifiably, going to be met with harsher scrutiny. I don’t know much about Kagan, but I do know something about the “flip side” of Affirmative Action: highly qualified minority individuals and women suffer the consequences of the fact that the system “corrects” in favor of the incompetent, much of the time. “Judge us on our merits!” we implore. No; if a member of Minority Group A, or a non-minority Female doesn’t get a particular job/contract/position, he or she can at least be assured that it was given to a “person of color” or a woman, no matter how minimally qualified they may be.
Roy said: With regards to Military recruiting IIRC Harvard is a private college so they should be allowed to have who ever they want or don’t want on campus.
Since Harvard takes Federal money, I don’t see why the Feds cannot force Harvard to either allow ROTC or to not take Federal funds. At least the Feds do that to other institutions with regards to their hiring practices. So why should Harvard, whose grads have helped pushed that philosophy on the rest of us, escape?
Uh oh – I smell a far-right extremist…
Someone call the Southern Poverty Law Center; I’m sure conservatives would gladly work with them to fight this new neo-Nazi scourge!
As stated earlier regarding military recruiters, Harvard could do whatever it wanted were it not for the fact that it takes federal money. The same would be true of High Schools, I would think.
Oddly enough, the very same “power of the purse” that the public used to use as a bludgeon against encroaching government is now one of many tools utilized by government against the citizen. For men aged 18-26, it is awfully difficult to secure a loan of any kind without registering for the draft.
Did she really try and make the case on the Third Amendment? I’d like to see that, although it is of little comfort in light of her desires to limit the scope of the first (free to speak unless the social cost is too great) and second (assault weapons bans) amendments.
I doubt that Kagan argued her case on 3rd Amendment grounds – but I strongly reject the “you took Federal money so you must comply with ANY demands” argument. If the Federal government cannot arbitrarily quarter soldiers or require that the entire Harvard faculty be Catholics, they cannot get around those prohibitions via financial coercion. If that “you took the money” were a viable principle of governance – then government could just announce a “zillion dollar tax on all citizens under penalty of death” and a tax exemption to anyone obeying the whims of some dictator. I emphatically supported Harvard’s (arbitrary) decision to keep troops off its property.
As PRIVATE PROPERTY, Harvard should not be bound to be “patriotic”, “consistent”, or “fair” – especially since the Military can trivially purchase property in the City of Cambridge and the students can show up at a recruiting station. The government’s case was pure intimidation of private property rights.
Kagan’s evil nefarious hiring record: “..her record indeed looks atrocious. Of the law school’s 29 new hires, 23 were white men, five were white women, and one was an Asian-American woman. There was not one black or Latino professor in the bunch..”
http://www.sdnn.com/…/hutchinson-kagan’s-affirmative-action-achilles-heel
Her recent hirings do not reflect her entire record. Either way, I don’t see what the fuss is all about.
I have a question. How many “blacks and browns” applied for the jobs she offered? I’m tired of this idea if a certain amount of whomevers isn’t represented, then racism has poisoned the air.
Silly me, I thought race was a social construct?
So, why is her hiring record under fire?
I’m 99.999 percent certain that she will come down on the side of racial quotas when it comes to Harvard’s undergraduate admissions. So, why the fuss about her hiring practices?
She’s an elitist. She’s entitled to exempt herself from the the same laws that are used as cudgels against us normal folks.
In terms of principle, Myron is correct. In terms of practice, largely because the public does not understand that their relationship with the public sector is not and cannot be the same as the one they have with various entities in the private sector, the purse argument carries with the masses.
The GOP always disappoints on these matters. Our combined work here on BAB has raised two superior issues for the opposition to explore sor far (opening the door to speech codes, assault weapons bans), and they persist in taking the loser route of playing the race card.