Larry Lessig's "case for Kagan" is the opposite

Harvard Law professor Larry Lessig tries to defend Elena Kagan, but proves how risky an appointment she would be

Published April 27, 2010 7:28PM (EDT)

WASHINGTON - MAY 20:  U.S. Solicitor General Elena Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. A former Dean of the Harvard Law School, Kagan's name has been included on many peoples' short list of possible candidates to the Supreme Court to replace Justice David Souter, who is retiring this year.  (Photo by Chip Somodevilla/Getty Images) (Getty Images)
WASHINGTON - MAY 20: U.S. Solicitor General Elena Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. A former Dean of the Harvard Law School, Kagan's name has been included on many peoples' short list of possible candidates to the Supreme Court to replace Justice David Souter, who is retiring this year. (Photo by Chip Somodevilla/Getty Images) (Getty Images)

(updated below - Wednesday)

Harvard Law Professor Larry Lessig has a Huffington Post piece today making what he calls "The Case for [Elena] Kagan" as Justice Stevens' replacement.  But as anyone who reads it will see, it actually does the opposite:  just as Walter Dellinger's paper-thin defense of Kagan did, Lessig's piece illustrates how Kagan has no meaningful record, no apparent beliefs, and no way for any rational, independent-minded person to assess the impact that she would have on the Supreme Court.  She's deliberately kept herself as one vast, blank slate, and Lessig, while setting out to assuage progressive doubts about Kagan, does more than any person yet to prove why those doubts are so warranted.  The fact that those most devoted to selling Kagan's candidacy are able to muster so little evidence speaks volumes, particularly when her defenders are very smart and talented lawyers (such as Lessig and Dellinger) adept at making something out of nothing.

Lessig, whom I like and respect, has known Kagan for 20 years.  They taught at the University of Chicago Law School together.  They "shared a subscription to the opera."  And when Kagan was Dean of Harvard Law School, she lured Lessig away from Stanford and hired him at Harvard, publicly praising him as "one of the most brilliant and important legal scholars of our time."  Today, Lessig returns the praise, heralding her "brilliance and strength," insisting that she's a steadfast "progressive," and assuring us all "that Kagan has the right views."

Would you like to know what's missing from Lessig's lengthy testimonial?  A shred of evidence, specificity, and actions or statements from Kagan.  In lieu of anything that a rational person could assess, he instead concedes that his "read of Kagan's politics comes from [his] personal experience," and simply insists that he knows what a great Justice she would be and that you would think so, too, if you knew her the way he does.  Apparently, Kagan harbors all of these steadfast, deeply held principles . . . that she's managed to keep completely hidden from public view during her two decades in various political and academic positions.  As Kevin Drum says:

[I]f Kagan's career has been marked mostly by positions in which she felt unable to publicly construct a track record of how she views the law, where does that leave the rest of us?  Lessig himself may be convinced that Kagan has a sound judicial philosophy, but those of us who don't know her personally can be excused for wanting a little more.

Even in terms of Lessig's reliance on his personal knowledge of Kagan, he offers absolutely nothing to support his claims.  Did she ever share with him her judicial philosophy, her views of the Constitution, her beliefs about the Court's role, her assessment of Bush/Cheney executive power theories?  Not that he mentions.  Although Lessig, to his credit, includes the caveat that "I hope it is obvious that I wouldn't say someone should believe this about her merely because I say it," the whole piece boils down, in essence, to:  I know Elena Kagan better than you do.  I'm here to say she'd be great on the Court.  If one accepts the validity of Lessig's obviously valid warning not to believe something merely because he says it, then that negates his whole argument, since it contains little other than his personally vouching for Kagan's progressive greatness.

In some contexts, vague character references from Important People can matter.  But here, we're talking here about the Supreme Court, about someone who is going to replace Justice Stevens, about someone who, if appointed, will wield substantial judicial power for the the next three decades or more.  Not only are such substance-free personal assurances not sufficient: they're not even relevant.  As the Founders designed, the Supreme Court plays as significant a role in resolving political and legal disputes as the President and the Congress do.  Some of the most consequential decisions of the last decade were decided by fragile 5-4 majorities.  The Court is the last refuge when (as was the case for the last decade) rights are being assaulted and political majorities are either indifferent or supportive.

Are progressives really willing to risk having the Supreme Court move to the Right with a Kagan appointment?  Are progressives really at the point where they don't need to see any evidence of her judicial philosophy before supporting her?  The fact that Barack Obama, Larry Lessig, and a bunch of Kagan's other friends from the University of Chicago and Harvard wink with one eye and assure everyone she's a Wonderful Progressive is going to be enough to accept her as a Supreme Court nominee?  Even in the Age of Obama, where Hope and Inspiration reign, isn't that asking for way more evidence-free faith than anyone in the (ahem) reality-based community should be willing to vest?  Not even the Supreme Party Loyalists on the Right were willing to pledge that degree of loyalty to their President when Bush insisted that Harriet Miers would be a stalwart conservative.  They insisted upon someone with an established written record so that they could assess the nominee's approach to the law and Constitution using their own critical reasoning faculties; why would any progressive not insist on the same thing?

The few substantive points Lessig does address undercut his case further.  It's true that much of the evidence used to divine Kagan's views is imperfect (i.e., her advocacy in the Clinton White House, her statements at her confirmation hearing, her behavior as Solicitor General, her tiny record of written scholarship, etc.).  But that illustrates the point:  in order to know what she thinks about much of anything, one is forced to try to cobble together sketchy, incomplete clues because there is nothing else to Elena Kagan's public record.  That's all there is. 

And even if one accepts Lessig's rationalization for Kagan's striking, careerist silence on the great issues of the day, including the Bush/Cheney assault on the Constitution and rule of law -- namely, that it is "inappropriate to use your position as the dean of one of America's premier law schools to advance your own political view of the law" -- it's still the case that (even if  justified) her record on these vital questions is completely blank.  Personally, I think it's warped to suggest that Kagan's institutional loyalties as Dean outweighed the imperative of standing up to Bush extremism, but even if those are one's priorities, it merely provides an excuse for, but does not cure, the inability to know what Kagan thinks about any of that.  And while it's nice that Kagan opposed "Don't Ask, Don't Tell" and (like many deans) banned military recruiters from campus until the minute there was a cost to that Great Moral Crusade -- the one instance in the last two decades where Kagan brought herself to take a public position on a matter of political controversy -- that hardly provides any clues about Kagan's views of the Constitution, the law or judging, i.e., the things she'd actually be doing as a Supreme Court Justice.

Finally, isn't some progressive -- somewhere -- going to have to address -- at some point -- the serious concerns raised by Duke Law Professor Guy-Uriel Charles regarding Kagan's hiring record as Dean of Harvard Law School, uncomfortable though that might be?  As Professor Charles writes:

Granting that we know very little about Kagan, what do we make of the facts that we do know? Here are some data that gives me pause about Kagan. When Elena Kagan was Dean of the Harvard Law School, she hired 29 tenured or tenure-track faculty members. But she did not hire a single black, Latino, or American Indian faculty member. Not one, not even a token. Of the 29 people she hired, all of them with one exception were white. Under Kagan's watch Harvard hired 28 white faculty members and one Asian American. . .

How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 29 new hires, only six were women. So, she hired 23 white men, 5 white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That's a racist and sexist statement. . . .Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I'd like to see the evidence. Moreover, what other questions would we have about Kagan if we knew more about her and her views?

When I was writing about Kagan a couple weeks ago, numerous people formerly connected with Harvard Law School emailed me to raise these concerns and to explain what a source of tension and anger Kagan's hiring record was, but since none of them was willing to say so for attribution and I was unable to track down the exact statistics, I did not include it in my critique of Kagan.  But here is Professor Charles, the founding director of the Duke Law Center on Law, Race and Politics, documenting just how severe the problem is (as well as raising a host of other serious questions about Kagan's amazing lack of written scholarship and other evidence of her views on virtually anything).

Whatever one thinks of the need for diversity in hiring, the view that it is a very important value is one of the most central and accepted planks in progressive politics.  As Professor Charles asks, from this perspective, what could possibly justify the Dean of Harvard Law School's hiring 29 tenured faculty members, 23 of whom were white males (79.3%) and only 1 of the 29 someone who is not white ?  These questions are particularly pressing because it is Kagan's hiring practices at Harvard that is the most frequently cited evidence of her alleged ability to bridge differences with conservatives; indeed, that's the aspect of her record which Lessig most aggressively touts.  Leaving aside the obvious fact that hiring a bunch of right-wing professors is not even remotely evidence of one's ability to craft judicial opinions that attract conservative judges, is Kagan's having pleased conservatives by hiring hordes of white, male, right-wing Professors really something that is considered a great feather in her cap?  Isn't it the opposite?  How can any progressive possibly defend the hiring practices which Professor Charles documents and condemns?  

Yes:  if you become Dean of a major law school and then proceed to hire bunches of right-wing Professors (while lavishing Bush lawyers you hired, such as Jack Goldsmith, with intense praise despite his formal approval of Bush's illegal NSA program), then conservatives will like you.  I agree with Professor Charles that ideological diversity is a desired goal for academic institutions and have no problem with (but rather applaud) her having done that.  But if that was accomplished through hiring practices which progressives in every other context vehemently condemn, shouldn't that be close to a deal-breaker when it comes to putting her on the Supreme Court, of all places:  the branch of government designed to protect the powerless and marginalized minorities when their rights are being trampled upon by the majority and the powerful?

Anyone who observes American politics even casually knows that if Barack Obama deems Elena Kagan to be a good replacement for Justice Stevens, then there will be numerous progressives who will immediately agree, get behind her and cheer for her confirmation.  But they'll be doing so without having the slightest idea what she thinks, what she believes, and what she'll do on the Court.  They'll be doing that knowing (and not caring) that there's a substantial risk that she will move the Court to the Right.  They'll be doing that in the face of this hiring record while at Harvard.  And they'll be doing that based on their willingness to place blind faith in the assurances of her Decorated Friends and their President that they know deep in their hearts that she's the Right Person and no further evidence should be needed.


UPDATE:  Linda Monk, who previously advocated for a Kagan selection in a piece at The Huffington Post by arguing she'd be "The Next Earl Warren," appears in the comment section to say that she's now changed her mind about Kagan as a result of the hiring/diversity issues documented by Professor Charles:

That a dean at HLS has this bad a record almost 30 years later is unreal, especially given the overall progress of women and other groups in the law. I didn't have these hiring statistics when I wrote my HuffPo article. Never let it be said of me that I can't change my mind based on evidence.

Credit to Monk for the rare and commendable attribute of being willing to change one's mind about a publicly advocated position.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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