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Kagan's scholarship

Intertwined with the question of whether Elena Kagan scholarship has been plentiful enough for the public to understand her positions is the question of whether Kagan's scholarship has been good enough to merit her nomination to the Supreme Court. Eugene Volokh -- a conservative legal scholar -- took a look at all of Kagan's published papers, and concludes that "they're excellent," and the fact that they're relatively few in number "reflects the breadth of her interests, and not any intellectual limitations."

Kagan, he says, has prioritized government service and educational-institution-building above publishing papers, but there's no evidence that that was because she's not good at publishing papers.

By Ezra Klein  |  May 11, 2010; 9:10 AM ET
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Unfortunately for Democrats, they are going to have a really hard time criticizing any Senator who votes against Kagan. Why? Because Obama himself has given Senators cover to vote against Supreme Court nominees based solely on ideological disagreements, whether the nominee is otherwise eminently qualified or not.

I paste below with a smile on my face the link where you will find Obama's defense of his vote as a senator against confirmation of Chief Justice John Roberts. No matter that Obama found Roberts to be supremely qualified. No matter that he found Roberts to have the "temperment" to be a good judge. No matter that Obama found Roberts to be "humble, decent, and respectful of different points of view".

No matter...Obama still voted against John Roberts. Why? Because of potential disagreements on ideology, disagreements that even Obama admitted may only occur in as little as 5% of cases! Yet that was still justification enough for Obama to vote against John Roberts.

So neither Obama nor any of his leftist supporters in the media dare criticize any Senator who decides to vote against Kagan, even if they find her to be very qualified. If a senator finds that he may disagree with Kagan on even a small fraction of cases, then that senator is given permission to vote against Kagan. And Obama and the leftists will be rightfully hypocrits of the highest order if they have the gall to speak negatively of any senator who decides to vote against Kagan.

I think this is what they call the chickens coming home to roost....

Posted by: dbw1 | May 11, 2010 9:24 AM | Report abuse

Nice use of the transitive property there, dbw1. That's entirely new to me that one can be found hypocritical not for contradicting himself, but for contradicting the beliefs of someone he otherwise supports politically. That's an entirely new supposition that supporters of a politician are bound to support anything and everything the politician has ever said or done in his life.

In this case, of course, I happen to agree with Obama's nuanced, measured, and intelligent vote against Roberts, and I happen to support any conservative who tallies a similarly civil vote against Kagan or anyone else on ideological grounds. It just so happens that there isn't any particular ideology of Kagan's that's divisive enough to justify a conservative nay vote. There will be plenty, no doubt. But not enough to obstruct her confirmation, and certainly none as intellectually consistent and honest as Obama's on Roberts.

Posted by: owumd | May 11, 2010 9:40 AM | Report abuse

Ms Kagan appears intelligent enough academia and all, but I like a well rounded candidate who has actual judicial experience as well. How can anyone be a Supreme Court Justice without having been in the trenches, so to speak?

I have a saying, "book smart does not necessarily make you life smart.” I prefer those in charge of life altering decisions affecting everyday Americans are not only smart but wise as well. Wisdom comes from experience.

What you all argue about are political views based on likes and dislikes of the administration. The rest of us just want the right person regardless of the current political chess games.

That would be a person with experience in front of the bench, along with having sat behind the bench.

Posted by: MyTwoCents4 | May 11, 2010 10:50 AM | Report abuse

Is nuance defined as "a convenient political rationalization"? Or "laziness"?

In any case, I tend to disagree with both Obama's vote against Roberts and any vote against Kagan on purely ideological grounds. At least with Sotomayor there was enough there to justify a vote against her--for a conservatives and constitutionalists--as I expect there was enough there, potentially, with Roberts for Democrats. But in the case of Kagan, any ideological objections are mostly hypothetical.

Frankly, I think it was a shrewd move. Many conservative sites are buzzing (at least in comments) about Kagan's sexuality and her likely support for gay marriage, so eventually some of those folks are going to provide some quotable nuggets of homophobia that can be used to threaten any opposition with. A very difficult nomination for Republicans to successfully mount any opposition to.

Andrew Sullivan argues against her being qualified because she may be a closeted lesbian:

Sheesh. Anyhow, a fellow un-closeted homosexual who is actually conservative (Gabriel Malor at Ace of Spades) says the confirmation of Kagan is a fait accompli.

Posted by: Kevin_Willis | May 11, 2010 11:01 AM | Report abuse

"That would be a person with experience in front of the bench, along with having sat behind the bench."

I'm really dubious that such a qualification is necessary. In some cases, it may be a hindrance. It's not like she was picked to be Solicitor General from a company the sold race horses. She has legal experience. If her decisions are "bad", then it won't be because she lacked adequate experience behind the bench.

Posted by: Kevin_Willis | May 11, 2010 11:05 AM | Report abuse

Nice hand grenade, Kevin_Willis, but it does you little good to paint yourself as well meaning and reasoned while you're suggesting that Obama's dissent of Roberts was either "political rationalization" or "lazy." He stated plainly and fully that Roberts was qualified, intelligent, and measured, but that the ideological differences between them were too great for him to vote in favor with good conscience. Someone will have to explain to me how a vote of that nature could be used as tool with which to paint all liberals as hypocrites.

The confirmation of this justice will go a long way to making people voice the real reasons for their objections. When more than a third of SC justices have been appointed with little or no experience behind the bench, we can say definitively that judicial experience is not a prerequisite for the position. Anyone waving that flag will quickly be forced to move to other objections.

Posted by: owumd | May 11, 2010 11:36 AM | Report abuse

I didn't take Kevin to mean that any liberals who don't follow Obama's statement are hypocrites. Quite the opposite, in fact. I interpret Kevin's position to basically be that Senators should not vote ideologically when giving advice and consent on a Supreme Court nominee. They should review the nominees qualifications and verify that they are intellectually up to the task and then permit the nomination to proceed barring some extraordinary revelation and/or belief expressed by the nominee.

I tend to be very torn on the issue of what I would do in these situations in I were a Senator. As Lindsay Graham stated the last time around, "Elections have consequences" and getting to nominate Justices is a big part of a President's job, so it should largely be his/her perogative to put people on the bench. On the other hand, there's a been a bright light shown on the political implications of life-tenure for federal judges/justices in the last decade. If Senators have the power to stop a nomination for someone they don't like, are they not allowed to use it?

I don't know. It's a really vaguely defined relationship between the President, the nominee, and the Senate. We really should put together something better, but since that would require a Constitutional Amendment it's not likely to happen. Ever.

Posted by: MosBen | May 11, 2010 12:20 PM | Report abuse

Just to add a bit, yes, it's simply ahistorical to impose a "judicial experience" requirement on nominees. While most nominees do have such experience, there are plenty of examples of nominees who never sat behind the bench before being on the Supreme Court who proved qualified Justices. Rehnquist is, of course, the example we're going to hear a lot about in the coming months. While I certainly didn't agree with a lot of his decisions, he was clearly intellectually up to the task of being a Justice, and man would I prefer another Rehnquist to having Thomas or Alito on the court.

Posted by: MosBen | May 11, 2010 12:25 PM | Report abuse

The accusation of hypocrisy was from the first poster, not Kevin.

Posted by: owumd | May 11, 2010 1:02 PM | Report abuse

"Andrew Sullivan argues against her being qualified..."


Please explain where in that posting Andrew Sullivan ever suggests that Kagan is not qualified (for any reason). That is not the point that Sullivan argues at all. Did you even read the piece?

Posted by: Patrick_M | May 11, 2010 1:30 PM | Report abuse

Surely Ms. Kagan being a lesbian is something nobody wants to even mention. However, her partner has openly come out in DC and makes no apologies. Kagan has remained in the closet but is on record as a LGBT supporter and likely plans to make the rights of gays an issue during her LIFETIME on the supreme court. There is little doubt about that. If you support gay marriage and gays in the military, she's your pal. Even with her scant public record, it is predictable that she will act as an advocate for her pro gay political agenda over the rule of law. You can predict with a fair amount of accuracy that she will be against all definitions of traditional marriage and for same sex marriage.

Why is a person who has never participated in traditional American values be in the position of supreme leadership? Why in the world would a person who is a pro gay advocate be granted such a powerful position? Clearly her political agenda will interfere with her objectivity.

I guess all straight, white, married couples better just run and hide, our rights mean nothing to this court. But if you are a illegal, hispanic trans-gender liberal, you'll be well represented.

Posted by: madmommy4u | May 12, 2010 11:39 AM | Report abuse


Unless you have personally slept with the nominee, you are just recycling rumors, not facts. Evidence now seems to be building that said rumors are untrue:

Add the fact that in her Solicitor General confirmation hearing testimony, Kagan said she did not find a right for same sex couples to marry in the US Constitution, and this should pretty well relieve your fears that "straight, white, married couples better just run and hide." Interesting how you tossed "white" into the equation there, madmommy4u.


You did not respond to my first question on your wrongful depiction of Andrew Sullivan's position on Kagan's qualifications. Please read Mr. Sullivan's updated statement on the whole subject of the rumors:

Posted by: Patrick_M | May 12, 2010 12:19 PM | Report abuse

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