The Strange Death of Liberal America

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Part One of this series about why Elena Kagan does not belong on the Supreme Court focused mainly on her qualifications, which are so mediocre she would not have been granted tenure at two University law schools that have published tenure criteria.  The problem is that had Kagan been denied tenure at either of those schools or even been a faculty member there she would have not even been considered.

But Kagan isn’t from just any school; she’s from Harvard and Harvard is like Lake Wobegon–everyone is above average. To suggest that a Harvard faculty member–much less a former Dean of Harvard Law School–does not meet the standards for a Supreme Court Justice would inspire so much outcry along the Charles River you could hear it in Washington, D. C.  It would say that the Emperor is not wearing any clothes.

Haynsworth and the Alternatives

Of course as Senator Roman Hruska once notoriously said about Clement Haynsworth, mediocrity should not be a deterrent to elevation to the highest court in the nation.

Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.

But for all his so-called mediocrity (actually the objections to Haynsworth were based more on his questionable civil rights record and conflict of interest allegations), Haynsworth had something Elena Kagan lacks–judicial experience, having served for a dozen years on the U. S. Court of Appeals for the Fourth Circuit, and for five years as its chief judge. Liberal interest group opposition, still smarting from the campaign to remove Abe Fortas from the Court, along with the Nixon Administration’s incompetent and heavy-handed lobbying for Haynsworth also did the nominee no favors.

In hindsight, while most historians grant that Haynsworth was a conservative justice, few felt he was unqualified to sit on the Court.  in his book The Selling of Supreme Court Nominees John Anthony Maltese admits:

Under other circumstances, Haynsworth may well have won a place on the Supreme Court. (p. 49)

But let us compare Kagan’s credentials with two other academics that were apparently on Obama’s short list: Harold Koh, Dean of Yale Law School, and Pamela S. Karlan, Professor of Public Interest Law, Stanford Law School.  Koh is one of the leading U.S. scholars on international human rights law.  He also has a more distinguished service record than Kagan, serving as the Clinton administration’s assistant secretary of state for democracy, human rights, and labor from 1998 to 2001.  Another plus for Koh is that he would be the nation’s first Asian American Justice, a glaring omission that needs to be corrected.  Karlan is one of the nation’s leading experts on voting rights.  She is coauthor of  a well-known textbook that Barack Obama used when he was still a law school professor.

Against these two, Kagan looks like the intellectual lightweight she is.  The press is full of quotes from fellow academics (and Harvard grads) lauding her intellectual brilliance, but these citations present no examples of her brilliance, a curious omission for academics.

The End of Excellence

If I were Lawrence Tribe, who many see as being on the left, or Robert Bork, who was obviously on the right, I would now conclude that writing what many regard as thought-provoking articles on the law, is a mistake if you want to be on the nation’s highest court. Anyone who writes prolifically and brilliantly about legal issues stands no chance of ever becoming a Supreme Court justice.  Such stellar legal scholars leave too much of a paper trail. Someone will find an obscure passage in the dozens of articles they have written that would anger someone on the left or right.

The problem with this is that what goes around comes around. Do not think for a minute that the next time the Republicans are in power that they will not find an equivalent to Kagan (of course with a Harvard degree) who has absolutely no track record but who for all we know may be the second coming of James Clark McReynolds, who was such an arch-conservative and anti-Semite that he would actually leave the room during discussions among the justices when Louis Brandeis spoke.  McReynolds also was the laziest–and perhaps most mediocre–justice in history, choosing to go duck hunting instead of tending to his Court responsibilities.

Kagan symbolizes the game has changed.  If she is confirmed, mediocrity will no longer be a cause for objecting to a nomination. Previously in nominating someone to the Supreme Court the stated–although not always followed–rule was to set the bar high. Now instead of having to clear a high jump bar, nomination to the Court has become maneuvering under a limbo bar set so low that only those with the slimmest credentials can pass under it.  Bring on the next Clement Haynsworth.

Compromiser or Conservative

Part One, also explored her actions as Dean of Harvard Law School and Solicitor General, finding in both cases enough to question whether she belongs on the Court. One troubling question about Elena Kagan is wrapped up in her reputation as someone who is able to forge compromises  But more and more questions are being raised about whether these were truly compromises in which each side had to give a little to get a result or show a consistent conservative bias.

Start with the issue of her years as Harvard Law School Dean, which are cited as a major example of her ability to forge creative solutions. Exhibit A is her resolution of the Harvard faculty wars that had become notorious to legal scholars. Kagan is credited with resolving the wars by bringing in a broader ideological spectrum of faculty.  Yet in fact, her faculty hires involved taking Harvard Law School on a right turn.

But Kagan’s hiring practice questions go far beyond bringing conservatives to Harvard.  Duke University law professor Guy-Uriel Charles notes that 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.

Exhibit B is cited as an example of her liberal credentials by conservatives and moderate Democrats: her refusal to permit military recruiters on campus because of the “ask don’t tell policy.”  In fact what really happened is classic Kagan.  In a widely circulated essay, “Harvard Law’s Profile in Courage,” Deborah Saunders reveals the exclusion of the military was a sham. While symbolically banning military recruiters from the front door, Kagan let them in through the back door.

When the Bush administration threatened to withhold federal funds from Harvard University in accordance with the 1996 Solomon Amendment — which requires colleges to grant military recruiters the same access as other employers or forfeit federal funds — the law school relented and opened the door for the university to continue receiving federal funds.

She backed a policy that marginalized men and women carrying out a law that was enacted by her old boss, President Clinton, and remains in force under the Obama administration. The law school picked on people in no position to fight back. She was a bully in an ivory tower, and she didn’t even know it.

Exhibit C is her revamping of the college’s notorious grading system, which had been memorialized in books such as The Paper Chase.  The new system put in place by Kagan has an advised but not mandatory curve, with one third in the group termed “honors,” the bottom tenth receiving a “low pass,” and the great middle a “pass.”   I don’t know where you went to school, but I don’t know of too many places where a third of the students are worthy of honors and everyone else save the unfortunate tenth “passes.”

This one suffers even more than most grading systems from the notorious gap fallacy. Some students are always going to fall into the not-quite-honors category but they will receive the same mark as someone at the other end who just manages to escape a low pass. Intellectually those two are further apart than the honors and no quite honors.

The supreme (pun intended) example of Kagan’s getting along to get ahead is in her recent appearance before the Supreme Court arguing against corporate campaign spending in the Citizen’s United Case. Jess Bravin of the Wall Street Journal points out:

In abandoning a central rationale for the 1990 opinion, Ms. Kagan may have made the conservatives’ job easier. Chief Justice John Roberts, in his concurring opinion, seized on Ms. Kagan’s concessions to justify overruling the 1990 case, Austin v. Michigan Chamber of Commerce.

Richard Hasen, an election law specialist at Loyola Law School, Los Angeles, who supported the voided law in Citizens United, said Ms. Kagan’s gambit failed because it let Chief Justice Roberts off the hook.

The Article

But if you really want to know why Elena Kagan should not be on the Supreme Court read her 1996 article “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”  The article is 105 pages long and Kagan does something I have not often seen in a scholarly article–pats herself on the back:

What I provide is  simply  a  reading-I  think  the  best  reading-of  the  Court’s First Amendment cases.

Curiously the initial section of the article is a restatement of her article on RAV v St. Paul.  One section on campaign finance (the issue she argued in Citizens United) states:

For example, it is not incoherent (it may even be correct) to suggest that campaign finance restrictions would improve the  speech market. Of course not everyone will agree on these matters, but not everyone agrees on any matter respecting the desirability of governmental action.

This classic Kagan, a kind of one the one hand/on the other hand intellectual wishy-washiness that some now want to place on the nation’s highest court. If Justice Kennedy’s opinion on the desegregation cases still has scholars and school officials pondering exactly what he meant, expect Kagan opinions to be equally confounding.

The Free Speech Smoking Gun

But if you want to really know why Kagan should not be on the Supreme Court read her section on “Laws equalizing the speech market” from pages 464-472 of the above article. There are several passages and an underlying philosophy in this section that should greatly disturb anyone who believes in the principles of liberal America.

First, Kagan explicitly accepts the Santa Clara (and recent Austin decision referred to above) that corporations are entitled to special standing. Of course, she does this in a typically Kagan fashion, through a rhetorical back door.

The Court tried to distinguish Austin from Buckley, principally on the ground that corporate wealth derives from privileges bestowed on corporations  by the government. But this argument fails, because individual wealth also derives from governmental action.  [see Footnote 143]

Stripping away the tortured construction, Kagan is not saying that she disagrees with the proposition that corporations have “privileges bestowed on corporations by the government” but just that using that as a single reason for corporate privilege is not valid because people also have those privileges.

The article goes on to quote favorably two opinions from Justice Scalia (more on this in a minute).  The meat of her argument is contained in the following phrase near the end of the section:

Laws directed at equalizing speech thus join the  list of laws that, although facially content neutral, demand strict scrutiny because of heightened concerns relating to improper purpose.

What Kagan believes is that if the government tries to level the playing field in terms of free speech bias it will inevitably corrupt the results. A Republican dominated government will find liberal ideas need balancing and vice- versa.  This is an ingenuous and ingenious straw man.

As I argued in the book The Strange Death of Liberal America media fairness–and with it free speech–has become increasingly corrupted by corporate control of the media. Ben Bagdikian, author of The Media Monopoly and one of the country’s most important critics of media concentration, has found that media concentration has grown to the point where six conglomerates supply a bulk of the nation’s media-based information.

Former FCC Commissioner Jonathan Adelstein used to refer to this as the “McDonaldization” of the American media, warning that we were on the verge on creating a modern Citizen Kane. In his famous “Citizen Kane Speech” he warned:

I think our local communities are better served by hearing many voices discussing the issues of the day on various outlets — rather than a handful of giant voices booming loudly across a range of media outlets they own.  Diverse views fuel our public debate and strengthen our democracy.  We need more voices in the nation’s media, but not from one ventriloquist.

The major Supreme Court decision on media fairness and ownership is the famous Red Lion case where the court said that “the marketplace of ideas” required that all contending voices be heard. Its most famous line asserted:

It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.

In contrast to Red Lion, Kagan’s free speech philosophy is much like Scalia’s–as is her judicial philosophy in general–in that, as Scalia puts it, equalization is “unqualifiedly  noble,” but since it is bound to be imperfect we ought not to attempt it.  Says Kagan:

The Buckley principle emerges  not  from the view that redistribution of speech opportunities  is itself an illegitimate end, but from the view  that  governmental actions justified as  redistributive devices  often  (though not  always)  stem  partly from hostility or sympathy toward ideas-or,  even more commonly,  from  self-interest.

Translation: When trying to balance the scales of justice, government, says Kagan, places a finger on them, but that finger isn’t going to perfectly balance the scales. To explain her reasoning Kagan cites two examples: Congress passes a law restricting speech in support of the Republican Party (this is another straw man) and the other it passes a law limiting sexually explicit speech that promotes the subordination of women. [Female readers, if you have reached this point pay careful attention to this one.]

In plain English Kagan says, such laws, “like all other content-based  restrictions, pose a  significant danger.” Kagan goes on to criticize “the very design of laws  directed at equalizing the  realm of  public  expression.”  In other words, she totally disagrees with Adelstein and Red Lion.

But Kagan doesn’t just attack free-speech equalization laws.

All  the  laws  directed at  equalization that  the Court has  considered, whether  classified as  facially  content  based  or content neutral, raise questions as to the motives of the enacting legislatures.

I put that sentence in bold and italics because it raises the major reason Elena Kagan, regardless of her mediocrity, does not belong on the Supreme Court.  Let me repeat the key phrases: “All the  laws  directed at  equalization,” that means laws about discrimination, antitrust, and other critical areas “raise questions.”

What Kagan does not acknowledge is that there are others who also are putting their fingers on the scales, so that the average American faces a situation like a Klondike gold miner trying to get their money’s worth out of a crooked saloon keeper.  Business, of course, has its fingers very heavily on the scales.  Depending on your point of view, so do various interest groups.

In these remarkable eight pages Kagan explicitly states (citing favorably none other than Justice Scalia) that all attempts at equalization should be subject to an extremely strict standard, certainly one stricter than has been applied by previous Courts. This puts Kagan squarely in the camp of the Four Horsemen–Scalia, Alito, Thomas and Roberts.

Based on her reasoning in this eight-page section I have little doubt she will vote with them more than her supporters acknowledge. I also fear she will vote to overturn a decision the far right has been trying to overturn for years–Red Lion.  That would be a disaster for our country. If you are a women or a person of color you need to vociferously object to the Kagan nomination–and feel free to cite the above quotes. If you are poor or elderly you should object for the same reason.

In fact if you are an ordinary American who feels that large institutions have gained greater power over our lives then you need to oppose the Kagan nomination. If confirmed Kagan will add to the Court yet another justice who turns the entire concept of justice upside down with a frightening new twist: it is not merely up to people to prove discrimination and inequality it is up to them to prove there was no legislative bias in any law prohibiting it.

Fittingly, Kagan offers no test, no help for those who wonder how you would go about such an impossible task.  Whether she will do so when on the Court remains to be seen.

Say No to Kagan
When George W. Bush nominated Harriet Meiers to the Court the rap was that she had never held a judgeship, had a mediocre intellectual record and close ties to Bush. Kagan is Barack Obama’s Harriet Meiers, with two exceptions: Meiers was from Dallas and Kagan is from Harvard and Kagan’s judicial philosophy is the more dangerous of the two.

The law community vociferously protested the Meiers nomination because they viewed her as a mediocrity. That won’t happen with Kagan because of her Harvard ties. Had Kagan, like Meiers, come from Texas or North Dakota the reaction might be different.  A Harvard version of the old Reagan GOP commandment is here: Thou shall not speak ill of another Harvard faculty member, especially if they have been nominated to the Supreme Court.

There is another disturbing aspect to the Kagan nomination–the ties to the Clinton Administration. There is a web site that calls Barack Obama Carter’s Second Term, but in fact it is looking more and more like Bill Clinton’s third term.  If this administration is going to be Clinton-lite then maybe we picked the wrong candidate. After all we could have had a real Clinton.

The No Paper Trail Fallacy

Everybody is writing that it is difficult to oppose Elena Kagan because she left no paper trail that would lead to questions about her future as a justice.  As is usual with the media they just have not followed the paper trail. Is it too much to ask them to go to the trouble of reading 108 pages–or even the eight pages cited above?

Elena Kagan DOES have a paper trail and it is one that should inspire skepticism and even fear among those who treasure America’s commitment to a level playing field.  Those who still wonder about the consequences of a tilted playing field might want to take a trip down to Southern Louisiana.  If that case were to come to the Court, which I suspect it will, I would not want Elena Kagan ruling on it.

Afterword

Some of the criticism I have read of Elena Kagan evidences a barely concealed antisemitic bias.  I find such antisemitism unworthy of a reasoned debate and condemn those who oppose Kagan for such reasons.

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