Let’s Not Get Too Excited About Kagan

I agree with Ilya that Elena Kagan is the best nominee we are likely to get from a liberal president and a Senate with an overwhelming Democratic majority. But the excitement (among some on the right) and dismay (by some on the left) over her good relations with conservatives as dean at Harvard is exaggerated.

There is no evidence that she has any ideological sympathy for the “right.” Yes, she effusively praised the Federalist Society for its commitment to open debate when the Society held its annual conference at Harvard. But isn’t the dean at Harvard supposed to provide some kind words when a prominent, prestigious organization holds a conference at the law school? And she did add, “You are not my people.”

Similarly, during Kagan’s deanship Harvard hired several conservative scholars, but it’s not exactly like she engaged in strenuous efforts to find provocative conservatives and libertarians whom the academy was overlooking. Instead, she hired Adrian Vermuele from Chicago, Jack Goldsmith from Chicago, and John Manning from Columbia, all wonderful scholars, but not exactly plucked from obscurity, or even plucked from schools outside the top 5. Besides, Guido Calabresi at Yale hired a remarkable number of conservative and libertarian scholars during his deanship, and no one thinks that Guido is anything but a dyed-in-the-wool liberal.

Finally, Kagan treated conservative law students nicely (as, again, did Calabresi at Yale), and held a dinner in honor of Justice Scalia. Again, that’s her job as dean–to be nice to the students and suck up to powerful individuals who could be of use to the law school.

In short, all we know is that, like Calabresi, Kagan didn’t let her liberal ideological sympathies get in the way of doing her job. She treated all of her constituents, even those on the right, with respect, prevented ideological considerations from dominating faculty hiring policy, and generally put the interests of Harvard Law School above politics.

That’s all great, and from all indications she was a fine dean. But I’m reminded of the conservatives who attended Harvard Law with Barack Obama who lavished praise on him for actually listening to them [literally listening, not agreeing] and treating them with respect when he was editor of the Law Review. Let’s not confuse competence and basic human decency with anything more dramatic. The fact that such qualities are not always on display at places like Harvard doesn’t mean that those who display them deserve anything more than a basic acknowledgment of those qualities, nor that anything more should be read into it.

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