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: Outside Counsel

By Bill Altreuter

As a general proposition it seems to me that blogs fail as journalism because blogs are primarily opinion based writing, with little research or shoe-leather reporting to back up the analysis. Of course, this is what most op-ed pages run too, so it's not as though this is a situation that is unique to this form. It is also true that sometimes bloggers do some background work. An outstanding example is this piece by Paul Campos, at Lawyers, Guns and Money on Elena Kagan's career and Supreme Court nomination. Campos has been critical of the Kagan nomination, arguing that she is oddly inexperienced and that her scholarship is thin, but in this post he goes beyond argument and investigates the circumstances behind her career at Chicago, her time in the Clinton administration, and her tenure as Dean of the Harvard Law School. He spoke with a number of people who were willing to be quoted anonymously, and several others on background-- there are no attributed sources, which is troubling-- but the people who he quotes tell a story that is rather different from the narrative we've had from the day the short list dropped. In Campos' view Kagan is more or less as qualified as thousands of other people, and has reached this career pinnacle as the result of an "extraordinary combination of social privilege and the ability to exploit it".

Campos breaks down the tenure process and provides a behind the curtain look at academia, then breaks down what the evaluative process in a scholarly manner, citing, inter alia "The Legal Process", Henry Hart and Albert Sacks book which argues that judges should interpret legislation as if it were the product of "reasonable persons pursuing reasonable purposes reasonably."

"The most interesting question about the Kagan nomination remains this: Why did Barack Obama nominate someone with largely unknown legal and political views to a lifetime appointment on the Supreme Court? Under the circumstances we can do little more than guess, but I would venture that three inter-related factors were crucial. First, Obama himself, as a former president of the Harvard Law Review and University of Chicago law professor, has been immersed in cultural context ? elite legal academia ? which puts a great deal of stock in the belief that being a good Supreme Court justice is largely a matter of technical competence."

He draws from this the conclusion that Obama is "at heart a comfortable denizen of Establishment America".

"The relative ease with which Elena Kagan is being confirmed to a lifetime appointment on the Supreme Court illustrates the extent to which Establishment America believes that a member of the club in good standing ? someone who has gone to the right schools, and gotten the right kinds of jobs, and befriended the right sorts of people ? can be counted on to do the right thing, even though her own legal and political views remain largely unknown. Naturally, from the establishment?s perspective, the right thing is to do nothing that might seriously disturb any of the social arrangements that continue to serve its interests so well. And in the end, Obama?s faith in Kagan is most likely based on a well-warranted belief that, as a Supreme Court justice, she will prove to be as acceptable to that establishment as Obama himself."

It's a longish read, but well worth it. I'm not sure I agree with all of it-- her clerkship with Thurgood Marshall isn't really touched on, for example, and Justice Marshall's endorsement of her-- even if it was 1988-- means something to me. Campos' main point is really less about Kagan and more about Obama, I think. The reality of Obama is probably that he is less different than any president of the Harvard Law Review than we believe, and the Kagan nomination confirms it.

Full post as published by Outside Counsel on July 22, 2010 (boomark / email).