Tuesday, May 11, 2010

SCOTUS Nominee's Experience as Dean of Harvard Law: Relevant or Not?

Elena Kagan is Obama's nominee for the Supreme Court.  She's never been a judge and she is getting lots of heat for it.  I have heard that her experience as a Dean of Harvard Law is somehow relevant to the new post on SCOTUS.  Arguably, she will heal the rifts among the other Supreme Court Justices.  I don't see how, since she will be the youngest nominee at age 50.  So, what did Elena do while Dean of Harvard Law?  I found this article that goes into it in detail:

During her nearly six years as the first female dean of the school, Kagan earned high marks for building consensus among the faculty’s notoriously warring factions. She modernized curriculum and attracted academic stars, transforming an institution that had a stellar name but was, by many accounts, ossified and often dysfunctional.
She made 43 teaching appointments, a stunning number, given that divisions among the faculty, which must approve hirings, had resulted in a logjam. Several of her appointments included professors with conservative leanings, which helped assuage complaints that Harvard did not welcome such views.
I don't really get it.  Was it that contentious at Harvard Law?  At the end of the day, if the different professors are "warring," how much does it affect the business of running a law school?  In the end, the Dean will do what the Dean does.  She could have healed the factions by ignoring them and doing what she thought was best with for the school.  I don't think that would be wrong. I'm also wondering if one can consider Harvard Law a microcosm of the United States, or even of SCOTUS.
I'm not really buying it.
But there's more:
In ways big and small, say instructors and students, Kagan also humanized Harvard Law. She installed benches and tables on a new patio, distributed complimentary coffee, decorated the drab hallways with framed artwork, and even set up an ice-skating rink.
“The students at Harvard Law were always grateful to the school and always deeply respected it, but it would have been the unusual student that said, ‘I enjoyed being there.’ But that changed with her,’’ said Randall L. Kennedy, who had Kagan as a student in his class on race relations law in the mid-1980s, saw her return as a professor in 1999, and then worked for her when she became dean in 2003.
Hardly an achievement if you ask me.
But I am happy that she is a woman.  I am happy that she is an intellectual. I'm also happy that she's  a New Yorker.  I also don't see it as a bad thing that she's never been a judge.  She might bring a new way of thinking to SCOTUS, which is needed.  She is famous for her involvement in Citizens United v. FEC and the President of Citizens United said the following:

Authors and pamphleteers from Thomas Paine to Hamilton, Madison, and Jay writing as Publius  were critical to the founding of this country.  The founders, Madison in particular, recognized the danger inherent in allowing the government to regulate what could or could not be said about it and wrote the First Amendment to guard against exactly the kind of government censorship that Solicitor General Kagan advocated for in Citizens United.
“Given President Obama’s reliance on her role in Citizens United v. Federal Election Commission and the essential importance of the First Amendment to American democracy, I urge the Senate to reject Elena Kagan’s nomination to the Supreme Court.  Every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal, and a nominee who does not respect that right has no business on our nation’s highest court.”

In case you were wondering, the issue in this matter was NOT Citizens' freedom of speech.  The issue was that the speech was backed by corporate funding. I love how his quote, if read in a bubble by a moron, may be construed to mean that Ms. Kagan was against freedom of speech. I wish I was so stupid as to fall for such black and white arguments.  Unfortunately, many uneducated Americans will believe just that and want her to be kept of of SCOTUS.

I heard a clip of her arguing against corporations having a right to freedom of speech, but can't find it on the net to save my life, so I posted the entire oral argument above.  I hope she's somewhere in there.  But this will be the reason why Republicans may vote against her.  It's probably the thing that I find most intriguing about this Nominee.  We're in the midst of a recession that was caused by a lack of regulations and big business gone wild, and people still think the key to our future is empowering Corporations.  Bull.


  1. Am I glad she's a jewish woman? Yea. But I'd also love to see more than one specific caste of lawyer end up on the supreme court. Oh I don't know maybe like parents, people from the west coast, people under 50, etc. Nominees that actually are more representative of the Nation rather than a quasi-"Philosopher King" sans military service. You wanna talk about radical? South Africa's version of the supreme court has an openly gay guy with HIV. How many years till we get a justice like that?

  2. So it is your position that all Republicans, and only Republicans, back corporate free speech?

    Last time I checked, the unions (corporations)and wall street have been exerciting their free speech through the Obama administration. It has been a regular union bukkake with Obama as the willing recipient.

  3. Nope. I was just speaking to this narrow issue... the reason why Republicans won't trust her. There are plenty of other groups that benefit from the holding of CU v. FEC... but I'm not sure where they would come out on whether Kagan should be on the Supreme Court. I'm actually a libertarian, but our system has so many socialist aspects that it's too hard to implement my ideal system. I'm not a liberal, by any means. I'm also not super happy about this nominee.

  4. After the dog and pony show known as the Senate confirmation hearing, everyone on the Supremes will be a graduate of three law schools: Yale, Harvard and Columbia. (The lone Columbia Law grad, Ginsberg, originally attended HLS.) How the hell is that healthy for a supposed democracy of 305 million people?

    Does anyone think that these pigs can relate to the average working man or woman? Even those of modest backgrounds will identify with and relate to the wealthy and corporate interests. In a way, this is a good thing; at least, it shows that this is all a show. In all honesty, these nine politicians in black dresses will continue to issue opinions based on their personal beliefs - that is how it has always been. (It's okay, as long as you can come up with some half-assed legal theory/rationale.)

    Pretty much everyone on the Supremes attended elite undergraduate universities and prep schools, too.

  5. Nando, true but anyone who's been in a courtroom knows it's like that everywhere. The law is just the quasi-intellectual bullshit we espouse to come to those foregone conclusions.

    I had a friend who clerked for a circuit judge and I asked her how it was going. She told me, "After every case, I spend my time researching what the judge told me he was going to decide, in chambers/before the proceedings. The remainder of my day is ass kissing."

  6. Ha. So funny you say that. I clerked with a judge and it was the same. "This is my decision. Now find case law to back it up." On one occasion I could not find the law to support the Judge's decision and I coerced her to change her mind... but that was only once. She never looked at the briefs for anything other than the P/H and the facts... she knew what she was going to decide based on that alone.. and I had to substantiate it. What bullshit!

  7. I worked in criminal defense and wrote the occasional appellate brief. It seemed like a fairly popular thing to do was to cut and paste the prosecutor's arguments into the opinion and leave it at that. Maybe this is "Harriet Meiers" all over again (as Rachel Maddow suggested), but, given my experience, I'm not really sure why anybody needs past judicial experience for any judicial posting if this is all the effort many of them expend at the end of the day.

  8. I didn't really want to go down this rabbit hole, but, what the hell. The difference between Kagan and Meiers is very simple, pedigree. Kagan has the perfect "establishment," or whatever loaded term you prefer, pedigree for what is acceptable to the "decision makers." But, if we're going to be honest, Obama pulled the same trick Bush did, "Quick look out into the hallway! Oh hey, there's my 'buddy' Kagan, let's put you on the court! A lot better than doing a genuine search throughout the land." I was also disappointed in what I considered to be Obama's somewhat cynical nomination of Sotomayor, which I think he did pretty much to quell "Latinos" by nominating Sotomayor [Over-exaggerated, Spanish emphasis added on name pronunciation only](had Richardson's career not gone down in flames I highly doubt whether she would have even been considered). For being a "constitutional scholar," as I'm sick of hearing that term thrown around about Kagan too without anyone telling me exactly what it takes to be a "scholar," I was quite honestly expecting Supreme Court Justices from Obama that would make me say "Oh Wow!"

    For example, Esquire did a piece a while back featuring Noah Feldman who is 10 years younger than Kagan (once again from HLS, but he specializes in Islamic law so we all know why that got passed). But sadly, that's not to be the case (also disappointing is the "constitutional scholar/professor" Obama's "tough guy" attitude in respect to Miranda but that's a whole different topic). Now let me be clear, Harriet Meiers' nomination was one of the few times I wholeheartedly agreed with Ann Coulter who said at the time, "It never occurred to me that he'd [Bush] nominate the cleaning lady!"

    But really, in terms of "experience," the argument being made for Kagan is pretty much verbatim as the campaign "narrative" that was used by Obama (in fact it's downright eerie, also I voted for Obama based partially on that argument and I've been questioning that decision ever since but then I remember the other choice was McCain/Palin or not voting at all). In conclusion, it took a while, but I really view the mainstream media as "infotainment" even the supposedly "edgy" ones like Maddow. The major networks are a pack of lemmings that latch onto a single story and repeat without any real investigation. It now appears as if the most "controversial" episode regarding Kagan's record was her sissy fight over the military recruiting because of "Don't Ask Don't Tell" (psst, probably because like Chief Justice John Roberts, she is a closet homosexual! oO I can't wait to see those two girls go at it!). Really? That's the biggest hiccup/research you did? Jesus christ.

    *Sidenote, finally, just to throw one more example of HLS bashing, Samantha Power. WTF. You were one of my favorite women. Where the fuck are you on the issues, genocide, now that you're one of those "policymakers" you used to rant about in your writings who needed to be vigilant to prevent atrocity? What's that? You married Cass Sunstein who has modernized Plato's Philosopher-King-Authoritarian-Power-Model for our day and pretty much taken a back seat? Fuck me...I'm done.


  9. Atleast conservatives attempted some intellectual honesty when they howled at the Miers nomination. How naive of me to believe that libs would say anything against Kagan's nomination. I guess if Obama nominated her, she MUST be good.



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