Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Is Elena Kagan’s “thin” record of legal scholarship a disqualification for the Supreme Court? Only if you’re a law professor.
My one reservation about Elena Kagan as a Supreme Court justice has been her extensive experience in legal academia. As readers of this blog know, the disconnect between law professors and law practice is a matter of grave concern to me. I do not understand why the great mass of legal academics consider legal practitioners lesser beings who really don’t belong in law schools and, if they are there, certainly don’t deserve the same status that the pure “scholars” do.
But now I can rest easy — law professors don’t consider Kagan one of them. Why? Because she’s practiced law too much!
Kagan taught at the University of Chicago Law School before going to work for the Clinton White House. During her time at Chicago, as the Chicago Tribune reports, “[s]he did publish several articles and won tenure in 1995, and was even chosen by students as teacher of the year. . . . [Se left to join the office of legal counsel in the Clinton White House shortly after that. As fellow West Wing veterans tell it, she quickly became an aide Clinton would pull aside for hallway conversations about his legislative initiatives on the Hill.”
In 1999, she sought to return to Chicago, but was unable to do so because, the law faculty decided not to give her an offer. They rejected her because her talents were as a lawyer and an administrator! We can’t have any of them cluttering up legal faculty:
“She turned out to be truly great at what she did,” said David Strauss, a U. of C. law professor and one of Kagan’s closest friends on the faculty. If things had gone as she’d planned at the time, he said, “maybe she wouldn’t be where she is now.”
The truly perverse thing is that in retrospect the Chicago professors don’t consider what they did a mistake. Rather, they are proud of it. As Richard Epstein — one of the most respected “scholars” in the U.S. — explains that her talents as a lawyer and an administrator don’t qualify her to teach law students:
Her papers were well-done, but they show exactly the same qualities of mind that prevent you from reaching the top ranks in academia. . . She is good at advising people, fixing things, putting programs in place.
I am not suggesting that legal scholars don’t belong on law faculties. I am suggesting that there are talents other than those of legal scholars that do deserve to be on law faculties and deserve equal status and respect. Why would you not want people who are good lawyers teaching law students who are in law school to become lawyers?
But most of all, I’m suggesting that the criticism of Obama’s choice of Kagan on the grounds that she is not sufficiently “scholarly” is a bunch of b.s. Why wouldn’t being a great teacher, a great administrator, and a great lawyer qualify you to be on the Supreme Court?
June 11th, 2010 at 9:40 am
[...] of success in their cases (pdf). David Post of the Volokh Conspiracy takes the study and applies the typical academic condescension to practitioners: “I’m constantly amazed, given the obvious fact that half of all litigants are holding [...]
June 30th, 2010 at 10:01 am
Nice strawman!
Nobody said that Kagan’s thin academic record disqualifies her from being a supreme court justice. However, her academic record was used as a justification for nomination due to her lack of judicial experience. In essence, her lack of academic record means that she is lacking in any qualification – academic or othervise.
Only good thing anyone is able to say about Elena Kagan is that she is well liked. Your own article is unable to say anything specific, and instead your resort to general praise and second hand observations. In other words: You got nothing.
June 30th, 2010 at 10:19 am
Actually, a lot of people suggested her academic writing was insufficiently “scholarly” to qualify her. Indeed, you do. Let me be specific. She’s been a very successful academic, she’s been a wildly successful administrator, she’s been in the Office of Legal Counsel in the White House, she’s been Solicitor General, and everyone she’s ever worked with think she’s enormously able at what she does. There’s no requirement that one be a judge to be a Supreme Court justice. Indeed, one need not be a lawyer.
June 30th, 2010 at 10:51 am
There is no disputing that Elena Kagan is successful or that she is well liked. I am also sure that she is extremely intelligent and capable person.
However we need a reason for her to be SCOTUS justice, rather than a reason for her not to be SCOTUS justice. Her personal success could be nothing more than a testament to her ability to network.