Eugene 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”
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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.
