Blank Slate
There’s a lot we don’t know about Elena Kagan—because she’s never told us.
Paul Campos
Kagan has published very little: three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces. Compare this record to those of the three other law professors most commonly mentioned as potential replacements for Justice John Paul Stevens: Stanford Law professor Pamela Karlan and Harold Koh, who became Yale Law's dean in 2004, each have more than 100, and Kagan's Harvard colleague Cass Sunstein, who also works for the Obama administration, has several hundred, including more than 20 books. All three have taken stands on numerous legal and political issues, in both the academic and the popular press. All have written extensively on how, in their view, courts should engage in legal interpretation in general and constitutional interpretation in particular.
In contrast, Kagan's opinions on these matters remain unknown. A nominee, even one who has never been a judge, doesn’t have to be a graphomaniac, but Kagan's publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component. For example, the thesis of Kagan’s 1996 article “Private Speech, Public Purpose” in the University of Chicago Law Review is that the Supreme Court’s First Amendment doctrine “constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech.” She flatly refuses to assert whether this scheme correctly interprets the First Amendment or whether it is a good method for regulating speech. “I have never proposed to show,” Kagan notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does … I leave for another day the question whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.”
Similarly, Kagan’s 2001 article “Presidential Administration,” published in the Harvard Law Review, describes how presidential oversight of federal administrative agency decision-making increased significantly during both the Reagan and Clinton administrations. Yet the article is focused almost solely on outlines of the administrative process, rather than its substance, thus sidestepping almost all potential political controversy. Kagan reaches the unobjectionable conclusion that vigorous presidential oversight is desirable to the extent that it increases the political accountability of administrative agencies and furthers regulatory effectiveness. (That Kagan's academic writings tell us so little about what we want to know when evaluating a Supreme Court nominee is especially problematic given that she hasn't published for a general audience; we can't find evidence of her views in the mainstream media, either.)
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Recently, I asked a law professor—a former student of Kagan's and a political conservative—what she thought of Kagan's prospective nomination. After expressing warm admiration for Kagan's teaching abilities (and gratitude for the letters of recommendation Kagan wrote for her) the professor opined that, as a justice, Kagan probably “wouldn’t be political.” When I pressed her on what she meant by that, she explained that she believed that, if put on the Supreme Court, Kagan "would be a centrist." (Given the professor's own political inclinations, she clearly meant this as praise). Yet, when I asked about how she had made that judgment, the professor acknowledged that it was based on just a "gut feeling."
On the flip side, liberal law professor Walter Dellinger recently claimed in Slate that Kagan’s views on presidential power are “fundamentally progressive.” Yet the sum total of Dellinger’s evidence consists of the “Presidential Administration” article and a 2007 commencement speech in which Kagan criticized John Yoo’s torture memos. Given the uncontroversial nature of the Harvard Law Review article and the fact that the torture memos have been repudiated by the Bush administration’s own lawyers, this is pretty thin evidence for Kagan’s supposedly “progressive” inclinations.
http://www.tnr.com/article/politics/blank-slate
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