Supreme Court

Kagan: "Wise Pick For a Weak President" or Enemy of Diversity Properly Understood Not to Mean Content of Your Character?


That quote above is the headline for Instapundit's take on Elena K., seen here swapping SCOTUS-asskicking stories with Sandra Day O'Connor. Writing in The New York Post, Univ. of Tennessee's Glenn Reynolds says

She is an establishment pick. Just the phrase "former dean of Harvard Law School" can be expected to provide Obama with some insulation against charges of picking a left-leaning extremist: Harvard and Yale are brands that provide some protection, just as in the old days corporate purchasing agents used to say that nobody got fired for buying IBM. And many voters still think (erroneously) of Harvard Law School as a conservative place where professors like the imposing Kingsfield of "The Paper Chase" hold court.

…one of the perennial selling points for the Ivy League is that Ivy League hires are easier to defend in this fashion.

As an establishment pick, she'll also get some breaks from the establishment. As dean of Harvard Law School, Kagan banned military recruiters from her campus and fought legislation aimed at ending such bans, because of her (and the legal academy's) opposition to the military's "Don't Ask, Don't Tell" policy. But many, many law school deans are in the same position, and can be counted on to defend her, or at least to soft-pedal any criticism.

Likewise, Kagan's relative openness to conservative and libertarian organizations like the Federalist Society, and her willingness to hire conservative scholars at Harvard, leaves her with a reservoir of goodwill among people on the right who might otherwise be inclined to try to torpedo her candidacy. There will still be opposition, of course, but it will likely lack the edge and intensity that might have been provoked by a different candidate.

Whole thing here.

Last week, Salon laid into Kagan for not hiring enough women and minorities as head of Harvard Law:

When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white—a statistic that should raise eyebrows in the 21st Century….

Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men? Do they really prefer to teach at less prestigious schools? Or if they only prefer not to teach at Harvard because of perceived hostilities to women and people of color, why is it that Kagan could somehow overcome these perceptions when it came to conservatives, but not women and people of color? After all, part of the praise for Kagan is that she made Harvard Law School welcoming again for conservatives—in this case, conservative white men.

Read about it here.

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  1. If she had any Libertarian or Conservative leanings, does anyone honestly think Obama would have picked her? Didn’t think so.

    So what, she is not a fanatic who thinks the Federalist Society should be on the list of banned terrorist organizations, doesn’t mean she is anything but a doctrinaire liberal. But since she is replacing a hard left liberal, it really doesn’t make any difference.

    1. Yeah, I pretty much agree. Not a big deal, unless she has some post-confirmation surprise hidden way up her sleeve.

      1. I suspect she will be a pretty awful corporatist government and government prosecutors can do no wrong kind of judge.

        1. Yup. Ivy Leaguers love the whole rule-by-technocrats thing, because it gives academics a role in running stuff.

    2. Why should Obama nominate a libertarian or conservative John? Did you advocate Bush nominating a liberal?

      President’s should nominate judges that match their ideology, voters who voted for them expect that. The point is that Kagan is respectful of the other side. That’s easily the best the other side can ask for. It’s absurd to say a conservative prez should nominate a liberal justice or vice versa.

      1. All Supreme Court judge nominees should be liberal, without regard to the ideology and/or party affiliation of the president making the nominee selections.

        1. Lord what a moron you are. Did you even read my post? Half of it was about how it would be silly to think conservative Presidents should be expected to nominate liberals.

          One wonders at how much white-hot, impotent rage at liberals in general and me in particular is necessary to make a person post something so retarded.

          1. MNG, I believe the overall tone is the ideology of a nominee ideally should not be introduced or considered at all. Since there are two major approaches to our Constitution, the “Living Breathing Silly Putty Doctrine” and the the “Strict Constitutionalist” view, and it is arguable that over the last 50 or so years, which school of thought is:

            A) More prone to the former school of thought as opposed to the latter

            B) More prone to legislate via judicial fiat?

            Because of these two simple little questions, it then becomes necessary to take into ideological views when considering an appointment. It should not, since in theory the court should be apolitical.

            1. The problem with that view Groovus is that every side thinks their view of the Constitution is both constitutionally correct and ideologically correct. They really do. If you read, for example, Steven’s opinions you will see him trying to ground his opinions in the text, ratification conventions, dictionaries of the time, historical understandings, etc., just like Scalia does (don’t beleive me, read Heller).

              Considering that liberals have a different idea of correct application of the Constitution than conservatives it’s only natural that liberal presidents will pick liberal nominees, and in doing so will honestly believe they are picking persons who will correctly interpret the law.

              1. honestly believe they are picking persons who will correctly interpret the law.

                Therein lies he problem, and it started with FDR and court packing. By politicizing the SCOTUS, FDR, more than any other POTUS, is responsible for the making the court a de facto legislative body.

              2. How many ways can one interpret the Tenth Amendment, MNG?

                I say there’s only one way. You will probably disagree, and I’m being kind in saying “will probably”.

                But there is only one way.

                1. “How many ways can one interpret the Tenth Amendment, MNG?”

                  I hope you are joking. That’s one of the most mysterious ones. Pray tell what does it mean?
                  “it started with FDR and court packing”

                  I’d say it goes all the back to the Federalists packing the court upon Jefferson’s presidential win. And FDR’s court packing suggestion was in RESPONSE to the court acting like a legislative body…

              3. If you read, for example, Steven’s opinions you will see him trying to ground his opinions in the text, ratification conventions, dictionaries of the time, historical understandings, etc.

                Emphasis on the “trying;” not necessarily succeeding. And the appropriate verb is not “ground,” but rather “rationalize.”

                The problem with Steven’s approach, at least in notable cases like Heller, is that there is virtually NO historical support for the proposition he tries to defend, and tons of historical support for the conclusion that Scalia (and the majority) reached.

                In Heller, what Stevens does is scrape the walls of the barrel, looking for any dregs or smidges of legal history that provide the merest support for his argument that the Framers understood or somehow allowed the Second Amendment to protect only a “collective” right (sort of a nonsensical term in itself) to keep arms, only the context of a militia, with heavy state regulation on the actual ownership and use. He scrambling and clawing for anything he can find and then holds it up, saying, “see? see? They regulated guns back then, too!”

                He began with the end in mind and then charged his clerks with finding whatever historical support they could find for it – regardless of the factual reality. Unfortunately for him, however, there is plenty of documentation, including the Framers’ own writings, which clearly show that Scalia and the majority were, in fact, the faithful adherents to the originally understood meaning of the Constitution.

                It’s not a matter of “Republican” justice versus “Democract” justice – it’s a matter of adhering to the original understanding of the document, not attempting to see what meaning can be wrung out of the words in it.

      2. Not saying he should. I am saying anyone who thinks she is anything but a liberal is kidding themselves or lying.

        1. I think she is a liberal for sure, but not the most liberal qualified judge Obama could have chosen. She’ll be more like Souter than Stevens (most of the time that won’t matter as the two agreed fairly reliably, but not always).

          1. Since we don’t have a bevy of her judicial decisions, it is indeed a wild card. I will grant that prognosticating on how she will rule is spurious at best; the best we have is her academic papers and her record as an attorney and as Solicitor General. Anything past that is chicken bones and a Magic 8 ball.

            1. Oh and her record as Dean of HLS. How could I forget that? Ideology matters as a predictive tool as well.

      3. President’s should nominate judges that match their ideology…

        Really? They should?

        1. Oh good lord, you’re not going to say something like “they should nominate the bestest judge” are you? Because I thought grade school was still going on and you should be otherwise occupied.

          1. What’s wrong with nominating the best judge, MNG?

        2. I should have posted a recipe instead. Damn.

          1. That level of argumentation would have fitted you nicely, yes.

            1. Well, evidently, I’m not the only one to question your argument, but whatever.

  2. Abe Vigoda is Bea Arthur in The Press Section is Over There, Baseball Boy.

    1. Pipe down, Tom Servo!

      1. Push the button, Frank.

  3. Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men?

    Who cares whether they find them less attractive. Were the female and minority applicants as qualified as the white men?

    1. I’ve found that women of color tend to find tenured professors at Harvard Law School very attractive.

      I’ve had some wild bitches in my classroom after hours, let me tell you…

    2. I depends on how handsome the white men are.

  4. “Even” should be “either” in the alt text.

  5. “Just 3 percent of her hires were non-white — a statistic that should raise eyebrows in the 21st Century….”

    Please go fuck yourself and die you racist bastard.

  6. Salon,

    If you suck, you suck. Ivy League law school is like the NFL of law smarts, and well, some people, apparently are just better prospects.

    1. Hey, even the NFL has it’s Ryan Leafs, JaMarcus Russels and Eugene Chungs.

  7. And many voters still think … of Harvard Law School as a conservative place

    I’m not sure I believe that.

  8. Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men?

    I always enjoy the wordplay of reverse-racists when they use collectivist jargon to buttress their insupportable and paranoid rants. “People of color” is much more safe and vague, strategically, than “black” or “Latino” or “Asian” to describe various tribes who, as a whole, are no longer in the minority. So it’s their color that makes them special and desirable and more qualified than whites to teach at the postgraduate level. It doesn’t get any more racist than that.

    1. Hire the best people, period. Race and gender should always take a back seat to competence.

      1. The idea is that there are obviously many people suitable for a job. It’s a fantasy to think you can find the single most qualified person in the country. Diversity should be a secondary concern but is still a legitimate one.

        1. “Diversity” is evaluating people based on completely arbitrary, superficial criteria. That is not legitimate.

    2. Don’t call them “reverse racists.” Racists are racists, period. To call someone a “reverse racist” implies that racism originates from white people, which is ridiculous.

    3. Let’s get something straight.

      There is no such thing as “reverse racism.”. The term implies that only white people are capable of real racism, and that any other form is simply a reaction to white racism.

      A racist is a goddamned racist, no matter the color of their skin.

  9. So the “right and libertarian leaning” academics aren’t swooning and dropping to their knees over her like they did Obama’s picks of Cass Sunnstein and Austan Goolsbee?

    Better late than never.

    Tip to feminists: Compare and contrast the reaction from said crowd and blame it on her lack of a penis.

  10. James Watt was so ahead of his time.

  11. I really think Obama is showing indifference or border line disdain for the white male vote in his nominations. Look at his Cabinet and his SCOTUS picks, he doesn’t feel the need to reach out to and include this group at all. As a white male that leans liberal I find that very, very disappointing. He’s getting politically worse and worse every day it seems.

    Oh, and these multiple Kagan threads are going to “split” what could have been an excellent thread about the most important news of the day…

    1. Buyer’s Remorse?

    2. White male liberals want to be treated with disdain by women & non-whites. They need it. They crave it.

      1. Spank me! I don’t deserve respect! I’m white and male, and therefore at fault!

  12. At what point do the people who obsess over the “achievement gap” put two and two together and make some logical inferences about why there is never enough diversity at places like Harvard?

    1. True. Harvard has no Eskimo/aborigine bisexual male Elvis impersonators with thyroid problems… but we’re working to correct that.

  13. From the Post quote:

    Kagan banned military recruiters from her campus

    From chapter 3 of George Orwell’s Animal Farm:

    “It happened that Jessie and Bluebell had both whelped soon after the hay harvest, giving birth between them to nine sturdy puppies. As soon as they were weaned, Napoleon took them away
    from their mothers, saying that he would make himself responsible for their education. He took them up into a loft which could only be reached by a ladder from the harness-room, and there kept them in such seclusion that the rest of the farm soon forgot their existence.”

    Excluding the military from mainstream institutions is a bad idea for a free society.

    1. Having a military is a bad idea for a free society.

      1. Not having a military is the best way to lose a free society.

        1. Spoken like a true supporter of statism.

          1. Spoken like a true anarchist.

  14. MNG, ideology aside, what criteria should be employed in assessing whether a SCOTUS nominee is “qualified?” (Sorry for putting the punctuation inside the quote-according to Tulpa, that makes me a grammar nazi).

    1. A question mark goes inside the closing quotation mark only if the question mark is part of what’s being quoted. (Apparently not the case here.)

    2. The usual things, experience, educational attainment, accomplishments.

      But I can’t think of any SCOTUS justice who wasn’t very high on all of these. Thomas was perhaps the lowest scoring on these matters and he has turned out to be a capable justice, so I’m not even sure how crucial this stuff is…

      1. Well that’s all well and good and platitudinous. But what experience? What educational attainment? What accomplishments?

        What is more important is whether or not the person is in fact a capable JURIST. What is their chosen method of interpreting the law? What is their chosen method of interpeting the U.S. Constitution?

        Education, experience and accomplishments are all well and good, but they don’t tell me what kind of judge the person will be.

  15. Last week, Salon laid into Kagan for not hiring enough women and minorities as head of Harvard Law:

    Yeah, blah blah blah, identity politics, blah blah…

    Anything real that we can sink our teeth into?

  16. Kagan hired mostly white males. This means she must have rejected an equal or even greater number of qualified female candidates of color. What a god-damn bigot.

    1. Interesting that you mention that. Ruth Bader Ginsburg had that very question leveled at her.

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