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Elena Kagan Deserves Better

By Jack M. Balkin

The silly season seems to have arrived early this year. It has been just a few days since Justice Souter announced his retirement, and President Obama has yet to pick a successor. Nonetheless, commentators have already begun attacking potential nominees for the seat. For instance, there's a new piece by Michael Goldfarb on the Weekly Standard website titled "Elena Kagan, Radical?" It pulls three paragraphs out of Elena Kagan's senior thesis on the history of socialism during the 1930s in an effort to show that her "sympathies at the time seem quite clear -- and radical."

It's hard to tell if one should even dignify this with a response given how many foolish things college students do and say. But the lawyer in me can't help but point out that the text (even quoted out of context) doesn't support Goldfarb's claim. For instance, one of the paragraphs draws a contrast between Kagan's brother's radical politics and her own, making clear the two are different. The second paragraph simply discusses a well-known historical puzzle -- why socialism took root in other Western democracies but not here even though the U.S. shared many of the ills that socialism's adherents thought it could address. The third paragraph, it seems to me, offers evidence against Goldfarb's thesis. It refers to radicals as a "they," not a "we." It talks about lessons "for those who, more than half a century after socialism's decline, still wish to change America," telling American radicals that "in unity lies their only hope." One might censure Kagan for banality -- suggesting that radical movements (on the right or left) often fail due to infighting is not a new idea. But the text quoted hardly suggests Kagan was ever a "radical."

On a more serious note, Kagan deserves a good deal better than this. As the Dean of Harvard Law School, she reached out to, and strongly supported the appointment of, conservative legal scholars. It cost her political capital to do so, and she spent it willingly. I am not suggesting a quid pro quo -- that conservatives somehow owe Kagan a free pass. I'm simply suggesting that as dean she modeled the approach that we should all be taking as we think about what kind of judge we want to serve on the Court. Harvard's faculty was polarized when Kagan arrived, and she figured out how to listen to both sides and get them to work together. As we now consider how to appoint a new Justice to a polarized Court in a polarized political environment, perhaps we all have something to learn from her example.

Full post as published by Balkinization on May 06, 2009 (boomark / email).