Ilya Somin of the Volokh Conspiracy takes issue with what he takes to be my claims that (1) Elena Kagan is poorly qualified for the Supreme Court because she produced a surprisingly small amount of legal scholarship and (2) an excellent dean needs to be a top scholar. Actually, I don’t think I made either claim. Instead, I argued that (1) given the slender amount of her scholarship and the fact that she’s never been a judge, Kagan would be a stealth nominee and, indeed, might be considered something of a stealth law professor and (2) that it was surprising to me (as someone who hasn’t followed law school politics closely) that a law professor could become the dean of a top law school having produced as little scholarship of note as Kagan has.
Like Somin, I believe one can succeed as a law school dean without having written much legal scholarship. For example, the managing partner of a large law firm might make a fine law school dean, as I understand Taylor Reveley has at William & Mary. And a law professor with no administrative experience and little scholarship of note might prove to be a terrific law school administrator. I just figured, naively, that when making its selection (i.e., before the fact), a law school like Harvard would want either a proven administrator or an outstanding scholar.
The more important question is whether Kagan is poorly qualified for the Supreme Court because she didn’t write much of note as an academic. In theory, of course, there are a number of ways in which Kagan might be strongly qualified despite her modest output. Her few writings might be exceptional. However, that’s not what Paul Campos found, and Somin doesn’t provide any evidence or analysis to contradict him (as I made clear in my post, I haven’t studied her writings, and thus have no position about them).
Alternatively, Kagan’s experience outside of academia might strongly qualify her for the Supreme Court. But it’s far from clear that this is the case. She has served only for a short time as Solicitor General, not long enough to make much of a mark one way or the other, though her handling of Citizens United has been criticized.
Kagan also served for several years in the White House counsel’s office. The Senate will want to find out more about this service, but on its face a stint in that shop doesn’t seem like a strong credential for the Supreme Court.
Somin touts Kagan’s service as dean, praising her adminstrative skills and her hiring of a few non-leftist law professors. These are admirable skills and accomplishments, but they don’t strike me as having much relevance to serving as a Supreme Court Justice. Somin seems to concur on this point.
So is Kagan poorly qualified for the Supreme Court? I’ll want to know more before answering that question. Right now, all I’m prepared to say is that she doesn’t seem well qualified, and is not as qualified as Judge Diana Wood and Judge Merrick Garland, to whom she apparently is about to be preferred. Furthermore, I think she’s probably less qualified than any of the current Justices were when they were nominated. They all had prior judging experience and in some cases had been outstanding lawyers or top-notch academics.
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