Some Kagan Contrarianism

I think I might have to award Jonathan Zasloff this month’s Slate award for awesome contrarianism for his post today about Elena Kagan. After noting that she somehow managed to get tenure at the University of Chicago and then become dean of Harvard Law with a shockingly thin academic record, he says that’s a feature, not a bug:

This shows that Kagan may not be a great scholar, but she is enormously skilled at impressing older colleagues — and that’s just what the doctor ordered for this appointment.

Essentially, any Supreme Court appointment this cycle has two tasks: 1) vote the right way; and 2) convince Anthony Kennedy to do the same.¹ Kagan seems to have the skills to do that.

Indeed, if you think about it, those justices with the greatest scholarly credentials have not generally been thought of as effective concerning the Court’s internal politics. Holmes and Brandeis were essentially isolated dissenters. As Richard Lazarus has demonstrated, Antonin Scalia has consistently undermined his own authority within the Court by insisting on his own theories of things. It is people like Earl Warrren, William Brennan, John Marshall, and John Paul Stevens, who were plenty smart but not infatuated with their own jurisprudential theories, who got things done.

Barack Obama is a student of the Court. I think he understands this history. And it’s why he’s leaning toward Kagan.

Well, OK. But if you want to play in the big leagues, Jonathan, you need to add a few paragraphs about the history of ass kissing and how it’s underrated by mainstream scholars. Then throw in an example of an obscure but history-changing court decision that was turned around at the last second by an epic case of brown nosing, preferably something from a district tribunal in 19th century Northern Rhodesia. You’ll have the crowd on its feet!

Anyway, Diane Wood has six kids and plays the oboe. I’ll bet she can convince just about anybody of just about anything. I have a pitch in to Jacob Weisberg for a piece that explains the whole thing.

¹On another note, maybe it’s time for all of us to tone it down on the whole Anthony Kennedy thing. The more we talk about how the next nominee needs to be someone who can wrap Kennedy around their little finger, the more likely Kennedy is to get grouchy and peeved about the whole thing. So let’s all just keep this between ourselves from now on, OK?