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Kagan Supreme Court Nomination Backed by Law School Deans in Letter to Senate Judiciary Committee

By Andis Kaulins

Birds of a feather flock together. We do not mean that negatively. It is just the way it is. So we read at The Caucas Blog at the New York Times that Law School Deans Back Kagan Nomination (a story originally posted by Julie Hirschfield Davis of the AP at Law school deals endorse Kagan for Supreme Court.)

See the endorsing letter at Scribd (via Main Justice) addressed to the Senate Judiciary Committee:

Kagan_deansJoint Letter

The problem in Congress is that Senators whose legal credentials are much lower than those of law school deans decide the matter of the nomination and apply different criteria that tend to be predominantly political rather than legal in nature. Everyone wants judges who think like they do themselves -- a rather selfish view of judging, of course, whereas the wise standard of judgment would be political neutrality. But who can expect such wise neutrality in Washington D.C.?

Nevertheless, this form of "check and balance" between the government branches was foreseen as desirable by the nation's founders, so we will just have to live with it.

Anyone who wants to sit on the highest court in the land has to run the gauntlet.
Does it really make a great deal of difference for the future of the country?

I recall Bayless Manning at Stanford Law School, while he was Dean there and raising money for the new law school, referring to a study done on the superiority or inferiority of various means of financing, as judged in the long term. The surprising result of the study was that all methods of financing were relatively equal over the long haul, except for minor cosmetic differences.

The same result probably applies to Supreme Court Justices, where a certain "continuity" in constitutional legal interpretation exists in the long term for the country's major legal issues, regardless of individual Justices, and where one Justice can make a significant difference only in the short term. The whole controversy over Supreme Court nominations is thus mostly a matter of "cosmetic differences" rather than one of actual substance.

Supreme Court Justices are almost always peers from the same select group of legal professionals who have followed similar career paths.

This is by no means a surprising result. Law by its very nature is conservative and follows major trends, rather than leading them.

Full post as published by LawPundit on June 17, 2010 (boomark / email).