It must always be tempting for presidents to nominate Supreme Court Justices who lack a long record of deciding federal cases. The fewer judicial opinions rendered, the less there probably will be to shoot at.
But law professors tend not to be ideal “stealth nominees.” For example, professor Goodwin Liu (who was not intended to be a stealth nominee, in my view) is drawing heavy fire over his writings and other pronouncements that show him to be well to the left of the legal mainstream. Senator Sessions and other Senate Republicans appear disinclined to allow Liu to walk away from his past utterances even though they don’t appear in judicial opinions.
Elena Kagan, considered by most to be the front-runner for the seat that Justice Stevens will vacate, was a law professor for approximately ten years, first at the University of Chicago and later at Harvard. She then served as the dean of Harvard law school from 2003 until 2009. Thus, one would expect Kagan to have produced a substantial body of scholarly writing.
Apparently, however, that is not the case. Paul Campos, himself a law professor, writes:
Yesterday, I read everything Elena Kagan has ever published. It didn’t take long. . . she’s published very little academic scholarship–three law review articles, along with a couple of shorter essays and two brief book reviews.
I didn’t know you could publish so little and still become the dean of a major law school. I guess times have changed since the days of John Hart Ely.
It is also Campos’ opinion, for which I cannot vouch, that Kagan’s few writings are nothing special:
if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan’s scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it’s unlikely to offend anyone in a position of power.
It would appear, then, that Kagan was something of a stealth law professor. This, in turn, seems to make her an ideal stealth nominee.
But is that what President Obama should be looking for with this nomination? Republicans may have little to shoot at if Kagan is the nominee, but the Democratic base will find little to love in her nomination (Campos, a liberal as far as I can tell, certainly doesn’t love the prospect). And because the Democrats can almost certainly confirm a liberal nominee with a record, provided it’s not too radical, it’s not clear how much Obama gains through a stealth nominee. (There’s also the possibility that a stealth nominee can surprise the president once confirmed, as Justice Souter did, but I think Obama can discount that possibility with Kagan).
Kagan did serve in the White House counsel’s office during President Clinton’s second term. Perhaps that service will produce something of a paper trail to supplement her allegedly ho-hum scholarly work and her stridently anti-military stance during the controversy over the Solomon Amendment.
To the extent Kagan’s scant record produces anything that bothers Senators, there will be no judicial record to offset it, the way Justice Sotomayor and her supporters successfully managed to offset her “wise Latina” remark by pointing to her handling of discrimination cases as a judge. Given what Sen. Sessions said yesterday, any such statements likely will draw very heavy scrutiny from Republicans.