May 11, 2010

"So Kagan... is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building."

Eugene Volokh defends Kagan as a legal scholar.
The [First Amendment] 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. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.
And what kind of free speech opinions can we expect Justice Kagan to write:
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies.

34 comments:

Triangle Man said...

Instapundit likes the choice.

David said...

Sounds like more speech for the wealthy and powerful, who can lawyer up to get through the regulatory maze.

Bad ideas--can a normal person dare run for office these days without fear of committing a felony? They can't and that's a travesty.

Scott said...

Okay, I am not a lawyer (thank God), so could one of you J.D.s explain to us exactly why Elena Kagen is more qualified than Harriet Miers to be a Supreme Court justice?

From here, it seems that both candidates are weak in equal measure. But again, not being a lawyer, I may be missing something. Please shed some light on the subject for us groundlings!

Triangle Man said...

@Scott

Here is Salon's take on your question.

Dark Eden said...

So she would support free speech as long as it doesn't offend /her/ sacred cows. But offending other people's sacred cows is no problem. Gotcha.

HDHouse said...

Scott said...
"From here, it seems that both candidates are weak in equal measure."

Gosh no Scott. Harriet wasn't even on the same planet as Ms. Kagen. I think the distinction would be the equal to someone like Ann and Glenn Beck.

Hope that clears it up for you.

garage mahal said...

Wise pick for a weak prez. Haha. Just love the conventional wisdom wingers like Reynolds invent for themsleves, and live in as if it's real.

Scott said...

@Triangle Man: The Salon piece only devotes one graf to Kagan's experience, and it's a gloss.

Here is a clip from a Glenn Greenwald piece in Salon, written by one of his researchers:

Selecting Kagan sends the exact opposite message - that we should simply serve power relentlessly until we get our shot at the big time. Given that only a handful of lawyers ever go on the high court, do we really want to create thousands more Elena Kagan-style careerists running around refusing to speak their minds in the vain hope they might get an appointment to a lifetime seat? I think we have enough of those.

Do we really want to encourage "earning" a seat by literally saying and doing nothing to ever offend anyone? It's like Kagan has taken Supreme Court confirmations to a new level: she's crafted an entire career out of being a blank slate. Wood has made her mark both because of and despite her strong beliefs.


Meirs was a lawyer. By contrast, it's almost as if Kagan just plays one on TV. She's only litigated six cases in her entire career.

(n.b.: Spelled "Kagan" incorrectly in earlier posts.)

Roger J. said...
This comment has been removed by the author.
Roger J. said...

Kagan is Obama's equivalent pick to Bush 41's David Souter: not much of a paper trailand limited judicial experience. Since she is replacing Stevens, there will be no harm to conservatives as far as I can see. And she may be a bit more conservative than Justice
Stevens. Its a safe political pick. On a somewhat different level, it also suggests there seems to be a trend to a mediocracy for SCOTUS nominations. Picks are made based on confirmation, race/gender, and other atmospherics. This applies to presidents irrespective of the initial behind their name.

richard said...

The difference between Harriett Miers and Kagan? Miers was picked by Bush. Kagan was picked by the most brilliant, eloquent,President ever elected

Maguro said...

It's like Kagan has taken Supreme Court confirmations to a new level: she's crafted an entire career out of being a blank slate.

No wonder Obama feels a kinship with Kagan. It's not just the smoking after all!

Scott said...

@richard: Oh thank you. I knew there was a reason.

Paul Zrimsek said...

Kagan is waiting until she's confirmed to reveal her secret Goth identity.

traditionalguy said...

This appointment again shows how powerless Presidents must feel in selecting "lifetime" Justices. They seem to all say, let's just pick a person we understand and throw up their hands and say that at least this ones not out of control because they clearly are not smart enough to see all of their options to be part of the continual Constitutional Convention run by five all powerful delegates.

Scott said...

@Paul: I hear she has a house account at Hot Topic.

former law student said...

Miers clerked for "The King of Torts," Melvin Belli.

I suspect the PTB thought she would have too much affinity for the little guy.

Hoosier Daddy said...

Wise pick for a weak prez. Haha. Just love the conventional wisdom wingers like Reynolds invent for themsleves, and live in as if it's real.

Well for someone who was riding the wave of 70% approval ratings, I'd say his fall from grace in such a short time doesn't exactly exhude what I would call a 'strong president'. I mean seriously garage, no snark but the man was billed as the greatest thing since sliced bread (did you get your commerateive coin, mug, plate?) and now he's barely sitting at 48% approval and he's only a mere 18 months in and all he has to show for it is a widly unpopular health care bill and a massive increase in the deficit.

Seems Reynolds is spot on but I don't expect you to see beyond your rose colored glasses.

Hoosier Daddy said...

I wonder if Kagan has any tattoos?

James said...

The comparison between Miers and Kagan is absolutely ridiculous.

One is a commercial litigator and former head of a lottery board. The Salon article Triangle Man posted said it pretty well when it said that in addition to there being absolutely zero paper trail of her opinions on Constitutional issues, "there was no particular reason to think she'd ever thought about them" since she got out of Con Law class at SMU.

Kagan on the other hand has served as a clerk on both the U.S. Court of Appeals and Supreme Court, taught Constitutional Law at two of the best schools in the country, served as Dean as one of those schools, and most recently has served as Solicitor General.

Is she the MOST qualified person Obama could possibly select? Probably not, but a comparison to Miers is absolutely ridiculous. Most conservatives recognized the Miers appointment as nothing more than cronyism, while most conservatives now would agree that, although not ideal, Kagan is qualified and a "safe pick." Acting like the only difference is that Bush nominated Miers is idiotic at best, and blatantly dishonest at worst.

Then again, I suppose I should be glad that at least it seems like the criticism of Kagan in the comment sections of right wing blogs has at least somewhat moved away from "OMG! She's UGLY!!! And she might be a LESBIAN!!!" I guess that's progress.

Hoosier Daddy said...

Is she the MOST qualified person Obama could possibly select? Probably not,...

Well it didn't matter for the presidency so why should it for SCOTUS?

Hombre said...

James weighs in at 11:26 with the Obot talking points elevating education and stints in academia to the level of real qualifying experience.

Like Obama has, right?

HDHouse said...

richard said...
"The difference between Harriett Miers and Kagan? Miers was picked by Bush. Kagan was picked by the most brilliant, eloquent,President ever elected"

Perhaps Jefferson, Adams, Lincoln and a few others thought better thoughs but you are right, he is in elite company..

Now what was your point about Mr. Bush?

HDHouse said...

Hombre said...
HDHouse 10:25: Gosh no Scott. Harriet wasn't even on the same planet as Ms. Kagen.

You mean in the sense that Miers, who worked her way through law school, was actually a real lawyer who had practiced law successfully for clients like Microsoft and Disney Enterprises and was regarded highly enough by her peers to be chosen President of the Texas Bar Association and Editor of the ABA Journal." yada yada....

I suppose that is why he withdrew or she dropped out..right? tooooo qualified?

"i just love him to death she gushed"....unforgetable

Hoosier Daddy said...

but you are right, he is in elite company..

Oh he sure is....

Fredo Corleone: I can handle things! I'm smart! Not like everybody says... like dumb... I'm smart and I want respect!

The Godfather II, 1974

Hell my 12 year old has better thoughts than this fool.

garage mahal said...

I mean seriously garage, no snark but the man was billed as the greatest thing since sliced bread (did you get your commerateive coin, mug, plate?)

You mean, the strawman that you hold him up against? It was actually a pretty easy choice for many given the, uh, alternative.

His fall from grace is an approval rating that has not budged in over a year, and I think ticked up last month.

Paul Zrimsek said...

Garbage is living up to his usual standard for honesty, I see.

James said...

Hombre:

It's an "obot talking point" to point out that Kagan clearly has more relevant experience and credentials than Miers? I am not arguing that she will be a particularly good justice, or that she would have been my choice if I were a Democratic President. But to argue that a corporate lawyer with no constitutional experience is on par with a Con Law professor at prestigious universities (should stop there, lest I start an Ann Althouse for SC Justice thread), former clerk on the Supreme Court, and Solicitor General is plain ludicrous, and most conservative commentators would agree with me.

Not to mention your clear lack of understanding of the clerkship process. Supreme Court clerkships are highly sought after and normally only the cream of the crop are able to even get close to that point. Face it, though you may have reason to think she wouldn't be a good justice based on your political views, she clearly seems to have the credentials for the job, unlike Miers. She was someone who was seen as a good, safe pick for the Court if any Democrat was elected in 2008, regardless of who it was. Miers, on the other hand, was only seen as a good pick by Bush, once he decided he wanted one of his personal friends on the Court.

I suppose it would be infinitely better to you if she was more like, say Justice Thomas, who served on the Federal Bench for 19 months after a largely political career, and was appointed to the SC as a mostly political pick.

Hoosier Daddy said...

You mean, the strawman that you hold him up against?

What strawman? Are you denying that he was hoisted on a pedestal as the greatest presidential candidate since Washington or was it because anyone with a D behind their name was getting your vote regardless so you just didn't pay attention?

It was actually a pretty easy choice for many given the, uh, alternative.

Yep. Glad to see a slick talkin community organizer and his dim bulb VP was such an easy choice. The last 18 months are proving what a great call that was.

garage mahal said...

What strawman? Are you denying that he was hoisted on a pedestal as the greatest presidential candidate since Washington or was it because anyone with a D behind their name was getting your vote regardless so you just didn't pay attention?

What strawman??? You can't stop with them. "greatest presidential candidate since Washington". Who the hell was arguing that? Answer: Nobody. But that's all you have.

Hoosier Daddy said...

What strawman??? You can't stop with them. "greatest presidential candidate since Washington". Who the hell was arguing that? Answer: Nobody. But that's all you have.

Ok garage. I'll just accept you were just working on your fixerupper Beemers and just reflexively hit the D lever in November and missed out on the whole love fest.

Hombre said...

James 12:41: But to argue that a corporate lawyer with no constitutional experience is on par with a Con Law professor at prestigious universities, former clerk on the Supreme Court, and Solicitor General is plain ludicrous, and most conservative commentators would agree with me.

I doubt that many conservative commentators would agree that the actual practice of law is unimportant as a qualification for a federal appeals judge at any level.

I doubt that many conservative commentators would disagree that if one is fishing for a liberal Supreme Court Justice, law faculties at "prestigious universities" would be the most productive ponds.

You are also confused about the nature of appointments to Supreme Court clerkships. They are not apolitical. And clerking for Marshall has more to do with Kagen's credentials as a liberal ideologue than a prospective justice.

Brief as it is, her experience as Solicitor General may yield something impressive.

Her combination of academic experience at liberal institutions and as partisan political hack probably do qualify her as an Obama nominee. After all, that combination served him well.

Miers was an unimpressive nominee. So is Kagen. You have no clue whether Kagen was even as competent at her career path as Miers was at hers. You just know she has liberal creds. For an Obot, that is all that matters.

Mick said...

Volokh is a legal scholar? He doesn't know what a Natural Born Citizen is (either does Althouse), i.e Born in the US to 2 US Citizen Parents (an indigenous citizen, born from within the US Citizenry).

John said...

This woman is evil. She has argued to the supreme court that if a prosecutor manufactures evidence to get an innocent defendant convicted, that the victim should have no recourse in civil litigation against the criminal who attempted to deprive him of his life and liberty.

She is a depraved sociopath. Basically, we're talking Alberto Gonzales in drag, here.

-jcr