Conservative-leaning Volokh dismisses argument that Kagan is unqualified


It's unclear whether Republican strategist Bay Buchanan has read any of Elena Kagan's law review articles or gone through any of her judicial essays, but discussing Kagan's nomination on last night's Larry King Live, it was pretty clear Buchanan doesn't think Kagan, who was confirmed last year as solicitor general and served as dean of Harvard Law School for several years, is smart enough to serve on the Supreme Court. "The question I think," she began, "is: How did she get tenure in these good universities when she doesn't write?" She added: "There's nothing there. She's a blank sheet."

Well, conservative-leaning attorney Eugene Volokh, who runs the blog, The Volokh Conspiracy, has read Kagan's scholarship and has examined her career as a scholar. Unlike Buchanan, Volokh concludes that Kagan "is a successful scholar" and while "she hasn't written as much as she would have had she only been interested in scholarship," that "reflects the breadth of her interests, and not any intellectual limitations."

Volokh wrote:

Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn't written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.


On then to my own evaluation of the First Amendment articles: I think they're excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan's Private Speech, Public Purpose article, see, e.g., PDF pp. 8-9). But I like them a lot.

During the Larry King segment, Buchanan repeatedly questioned Kagan's qualifications, first arguing that "[s]he has three law review articles and a handful of short essays" to her name -- "I've written more than this" -- then commenting that this level of scholarship at Harvard doesn't show she is as qualified to serve as say, Justice Clarence Thomas.

However, Volokh further wrote of Kagan's law review articles: "Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General -- but for the reasons I mentioned above, that's not the right way to look at it."

David Gergen and James Carville both made similar points on Larry King. Gergen called Buchanan's argument "preposterous on its face," saying that "if [Kagan] were on the right side, we would be hearing very different arguments from Bay." Gergen added: "I think you're looking for ways to oppose her that have really nothing to do with her qualifications." And Carville, after assailing Buchanan's claim as "stunning," suggested:

CARVILLE: If it's how much you wrote -- I got a suggestion. The next Supreme Court justice should be John Grisham. He's written a lot. He went to Ole Miss, and I think he'd be a doggone good Supreme Court justice 'cause I've read his books and I like the way this guy thinks. He served in the state legislature and I think the next Supreme Court justice ought to be John Grisham. I think he'd do a hell of a job, and that way, they couldn't complain about somebody who hadn't written anything.

But Buchanan persisted, concluding that with his two nominees, Kagan, "who hasn't done anything," and Justice Sonia Sotomayor, President Obama had "dummied down the Supreme Court":

BUCHANAN: What makes her qualified? She has no -- being a president of Harvard makes you qualified? It does not. What he's done is dummied down ... he has dummied down the Supreme Court. He has given two of the best appointments of his administration to people who are not the best and the brightest, and that's unfortunate.

As Carville said at the end of the King segment, "I don't think that spaghetti's gonna stick on the wall."

Supreme Court Nominations, Elena Kagan
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