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The Great Kagan Supreme Court Debate

Two leading legal experts debate the pros and cons of Obama's nomination of Elena Kagan.

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And finally, it is just not—it’s just not the case that people coming from extremely important professions—for example, imagine a David Boies twenty years younger, who the President decides he wants to appoint because he thinks that we need somebody who has a good, practical understanding of the way litigation works. Well, such a person working inside of a law firm is literally not permitted to be articulating views about a wide range of issues that are not directly relevant to his or her practice. That was the case with Lewis Powell. Lewis Powell comes from practice. We didn’t know what his views were in a wide range of cases. That was the case with Whizzer White, with Justice Byron White, who again, we didn’t know his view in a wide range of cases, because he wasn’t in a position to be giving such a view.

Now we can’t—Glenn says we’re not against appointing non-judges. Well, if you adopt a standard that we can scream with outrage because he hasn’t—because a nominee has not written an op-ed on every single major issue that there is in constitutional law, then he is saying we cannot be appointing non-judges, because the number of non-judges who are going to be in that position, who are not crazies or extremists or, you know, people like me who can’t seem to stop himself from writing about everything there is to write about, the number of those people out there is three or four, and they’re not necessarily great Supreme Court justices. I think we have to recognize that we need a diversity. And the diversity that we need here right now is a practical judgment and ability to get four votes and turn them into five. And that’s something that, of all the skepticism that Glenn has raised, nobody has raised that skepticism, because there’s no basis for it.

Goodman: I wanted to ask Glenn Greenwald, this issue of diversity, slightly different than what Professor Lessig is raising. A group of law professors have openly questioned Elena Kagan’s diversity record at Harvard when she was the dean of the law school. During her time there, Kagan made thirty-two tenured and tenure-track academic hires. Of these thirty-two, only one was a person of color, only seven were women. Your comment on this?

Greenwald: Well, I’m going to defer to those law professors, because, number one, they’re tenured law professors at major law schools around the country and know, in and out, how the mechanics of hiring work, and secondly, they’re people who have devoted their careers to advocating for diversity, of the kind that the progressive community, and even the Democratic Party generally, has always had as a plank in its mainstream platform. And what they said is that if you look at Elena Kagan’s record as dean—and the hiring that she did is one of the things that is touted as proof that she’s able to bridge the communities and make conservatives like her—they called it, quote, “abysmal,” “indefensible for the twenty-first century” and “shocking” at how overwhelmingly white and male those hires were. Thirty-one out of thirty-two law professors who received tenure positions while at Harvard during her dean—tenure as dean were white. Now, I think that that is an issue that needs to be explored, and I’m going to leave it to those professors and other advocates, who know those issues better than I do and who have been dealing with them their whole careers, to raise those questions.

And, you know, the thing—let me just say this, which is, you know, you just heard in Professor Lessig’s answer to my question, I think, a lot of evidence about how you can’t know where Elena Kagan would fall on any of these positions. And in terms of this ability—and it relates to what you just asked me, Amy—to bridge the gap, the ideological gap on the Court, to know that, you would first have to know what her perspective is. Is she going to be agreeing with the liberal wing on these issues? He has no evidence that she will on these great issues. And secondly, there were judges and other people who have a history of crafting legal opinions that can attract conservative judges. That was the reason why I favor Judge Diane Wood. The fact that Elena Kagan at Harvard hired a bunch of right-wing professors and therefore made conservatives like her, that was a good thing she did, but that’s hardly evidence that once she gets on the Supreme Court she is going to be able to craft legal opinions that will attract conservative judges.

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