Breitbart “Exclusive”: Kagan's Notes On Derrick Bell's Law Review Article Were “Handwritten”

Last month, the Breitbart team tried -- and failed -- to gin up outrage over a 1991 video showing then-law student Barack Obama embracing the late Harvard professor Derrick Bell. Breitbart editor-in-chief Joel Pollak went to great pains to cast Bell and the critical race theory that he espoused as radical, even pushing his spin in an appearance on CNN (where host Soledad O'Brien took apart his argument).

In an April 25 post, Pollak returned to the Bell non-controversy, announcing in a post on Big Government that Breitbart News has obtained “exclusive” “handwritten notes” that Supreme Court Justice Elena Kagan sent to Bell back in 1985. At the time, Kagan was the editor of the Harvard Law Review, to which Bell had submitted an article.

And just what did the Breitbart team find? Apparently nothing good, because the only thing the post proves is that Kagan questioned one of Bell's ideas.

Pollak apparently found images of the notes themselves unworthy of inclusion in his post, save a single image of a few sentence fragments.

Looking on for at least a transcription of the notes -- the headline refers to “handwritten notes” “on critical race theory” -- the reader has to wade through a few paragraphs of Pollak building tension. He seems to have found significance, for example, in Kagan's choice of paper: “Unlike then-Harvard Law Review president Carol Steiker, who corresponded with Bell via typed letter (apparently on a 1980s-vintage dot matrix printer), Kagan chose to write to Bell exclusively on yellow notepad paper. She did not explain her choice to write by hand, save to suggest in one note on Aug. 30, 1985 that she was pressed for time.”

When Pollak finally gets around to giving the reader a portion of the mysterious notes, here's what he has for us:

Most of Kagan's notes to Bell concern minor editorial comments on the “Chronicles,” as she and the other editors prepared his article for publication. One interesting passage concerns a legal question that Kagan and Steiker posed about Bell's attempt to argue for a new constitutional right--a “substantive due process right” to “racial healing”:

As Carol and I told you on the phone, we're a little bit concerned at the focus on this part of the piece. The doctrinal section centers on the idea of creating a substantive due process right to racial healing. But the reader is left wondering: why wouldn't the Court strike these laws down on first amendment grounds? It strikes me that the Court would indeed strike these laws down on the ground of free speech or free association.

That's right: the “interesting passage” that Pollak found among “minor editorial comments” is Kagan expressing concern about Bell's call for the creation of a new right. She thought the Supreme Court would probably strike down related laws “on first amendment grounds.”

Yet somehow, Pollak manages to conclude, “If Obama is re-elected, Kagan could be part of the 'more liberal court' Bell envisioned--and great changes in constitutional jurisprudence could be the result.”

If Pollak has evidence that Kagan's notes to Bell show she'd like “great changes in constitutional jurisprudence,” by all means, he should share it. Showing that Kagan once thought a proposal of Bell's was probably unconstitutional isn't it.