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A Case for Kagan

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I began my career teaching at the University of Chicago Law School. Obviously, relative to the others there at the time, I was something of a slouch. One of my colleagues became President of the United States (Obama). Two were already prominent federal judges (Posner, Easterbrook); two more would become federal appellate court judges (Michael McConnell, Diane Wood). One would become the senior regulator at OMB (Sunstein). And one, after being blocked by Republicans from becoming a federal judge, would become dean of the Harvard Law School, and then Solicitor General of the United States (Elena Kagan).

Two of these superstars are now being considered by the President to replace Justice Stevens on the Supreme Court -- Diane Wood, and Elena Kagan. Both would be extraordinary appointees. But while I've been reassured that many see this clearly with respect to Diane Wood, I have been puzzled that more have had questions about Kagan. That puzzlement, as well as the encouragement of some friends, has led me to try in this essay to map out a case for Kagan. Not a case against Wood: Glenn Greenwald and Sheryl Gay Stolberg have written powerfully about Judge Wood's strengths, and the clarity of her judicial philosophy. Those accounts are right and true; there's no doubt Wood would make an outstanding justice. But instead, I want to sketch (or "sketch": I'm a law professor, and this is wildly too long) the case for Kagan that seems strangely absent from the progressives that at least I've read.

I believe I have some standing to make this case. I have known Kagan since we both began teaching together almost 20 years ago. As we were the only two faculty beginning that year, we became quick friends and allies. We shared a subscription to the opera. We conspired about how to build an even greater law school. And though she left to work for Clinton in 1995, we have remained close and constant friends. In the fall of 2008, she lured me back from paradise (Stanford) to the Harvard Law School. I have known her as well as just about anyone else I have known in the legal academy.

The part that everyone gets about Elena Kagan is brilliance and strength. The questions are about her politics and resolve. Is she a liberal, or in the language of the times, a progressive? Would she be a triangulator, or a justice fighting hard for what she believes?

The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, "What would be the best answer?" to any particular question, but instead, "What is the answer of fidelity?" Or again, what is the answer that most faithfully applies the law of the different generations of our Framers -- the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I'm not sure that "liberals" on the Court have always accepted this framing. Certainly Douglas and Holmes didn't feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood's opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.

There are questions about whether Kagan is really the progressive I describe. I will address those questions below. But if you'll assume with me for the moment that she is, then I believe there's an aspect to Kagan's experience that sets her apart from others on the short list. Kagan has had practical strategic experience. Her most important work over the past two decades has been in contexts where she has had to move people to see things as she did. And through that experience, she has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn't mean triangulating. It doesn't mean "compromise." It means finding a way to move others to the answer you believe is right.

This is the single feature the liberal side of this conservative court lacks most. Even Justice Stevens was too quick to run off to a corner to write his universally brilliant dissents from insane majorities. Breyer too too often seems content in his law professor way to write an opinion that sounds good when read aloud to himself, but in light of the evolving jurisprudence of the Court, is tone deaf to the view of others. Too many of our progressive colleagues swing for the bleachers of history, rather than victories now. Too many are content with simply knowing that their liberal law professor friends are busy praising their opinions in constitutional law classes rather than fighting to find a way to split the ideologues on the right with their own principles and rhetoric.

Again, I'm not talking about triangulating. The point is not that we need someone who knows how best to compromise. The point instead is that we need a justice with the energy and strength to use the legal materials provided by the other side to advance the right answer.

I felt this point most acutely in a case I argued and lost in the Supreme Court, Eldred v. Ashcroft. The issue in that case was Congress' power to extend the term of existing copyrights. We argued (and historians in the case confirmed) that these repeated extensions (11 times in the prior 40 years) were inconsistent with the Framers' understanding of a clause that gave Congress the power to grant copyrights "for limited times." Nonetheless, seven justices upheld the extension, with the five conservatives sitting silent in the face of an originalist argument about how Congress was exceeding its enumerated powers -- just the sort of argument that seemed to excite those 5 conservatives, at least when the underlying issue was, well, conservative.

Stevens and Breyer dissented. But neither even tried to engage the conservatives on the other side. Stevens can be forgiven for that; after thirty years, a justice has the right to simply state his or her beliefs. But Breyer had no such excuse. His opinion read more like an article in an economics journal: brilliant, and right, but adopting a method of reasoning that literally no one else on that Court was going to follow. No doubt, if you think you're writing for history, that's fine. But if you're trying to leverage argument to get 5 votes for the right answer, this sort of opinion is simply self-indulgence.

Breyer's weakness points to a general weakness in appointing law professors to high courts. We law professors -- especially at places like Harvard or Yale -- spend too much of our time worrying about abstract right, not practical right. We're skilled in working out the very best theory. We're not very good at figuring out how to engineer an argument to the best result. We're the opposite of a politician, though we have just as many sins: Politicians care too little about what is right, and too much about getting the deal. Law professors care too much about what is right, and care too little about the strategy for getting what is right. No law professor praises Earl Warren (who engineered arguably the most important opinion of right in the 20th century -- Brown v. Board of Education), or even Brennan with true feeling. The real heros are the great dissenters -- Holmes most prominently.

Wood has had the chance to correct that weakness. She's been a judge for 15 years, working on an exceptionally collegial court. She has persuaded Posner and Easterbrook to join her, in some cases against what otherwise would seem their predisposition. (Though those flips shouldn't be exaggerated: All three have been friends for 30 years. All three were colleagues at the same Law School.)

But it is this quality that distinguishes Kagan most strongly. For the core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side. Those were the reports of her work inside the Clinton administration (Clinton's nickname for her: "Judge"). Many describe her success at remaking a radically diverse law school (the Harvard I've returned to is not the Harvard I left). I've seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.

In a line: She marries the brilliance and strength of the very best Justices, a practical skill not of compromise but argument, and deep experience inside the executive branch. It is a broad base of experience, producing an understanding of what is possible, and skill to produce what is right.

My case for Kagan depends of course upon believing that Kagan has the right views. Obviously, my read of Kagan's politics comes from my personal experience, and I hope it is obvious that I wouldn't say someone should believe this about her merely because I say it. But I do think that certain inferences about her substantive views -- inferences that suggest a politically different Kagan -- are mistaken. Or more precisely, they are not fair, because they ignore the particular roles that Kagan had at the times that the inferences are drawn.

For example, some have suggested we can know Kagan from the policy advice she offered President Clinton. That inference is a mistake. As a liberal who clerked for a conservative, I know well the distinction between offering my view about what I believe is right (given how I believe the constitution should be interpreted), and offering my view about what is right, given my boss's views about how the constitution should be interpreted. Likewise with an aid to a President: The question isn't what you would do if you were President. The question is what's best for the President to do, given his values and the politics of his presidency. That's not to say one shouldn't say what's right. But it is to recognize the obvious point about policy advice -- that sometimes, what is right depends upon the already committed policy of a President.

Likewise, some have wondered about Kagan's progressive credentials because as Dean of the Harvard Law School, she didn't take a lead in criticizing the policies of the Bush Administration. Here again, the inference is flawed. No doubt some deans believe it completely appropriate to use their prominence to advance their own views about public policy. That's not my view of a dean, but it is the view of some. But if you didn't have that view of a dean -- if you thought it inappropriate to use your position as the dean of one of America's premier law schools to advance your own political view of the law, then the fact that you didn't sign outraged letters about President Bush would say nothing about what you thought about the policies of President Bush. Your restraint would be a measure of integrity, at least with respect to the institution.

Should a dean be so constrained? Again, I think reasonable people can differ. My own view is that a dean represents a faculty, and a faculty as large and as diverse as Harvard's is not one that would speak in one voice about matters of politics. And thus, in my view, a dean should be restrained in her politics. But the point is not whether my view is correct or not. The point is: if a dean believes that being a political spokesman for the Right or the Left is not appropriate, then the fact that she stands silent about some matter tells us nothing about how she thinks about that matter.

Kagan of course was not silent on all issues of public importance. But she did reserve her guns for public policy issues that were central to the question of how she did her job as dean. The one deeply controversial issue that she took on publicly was the question of military recruitment on the Harvard Law School campus. Harvard, like most law schools, had a policy against lending its facilities to employers that discriminate. The military (still) discriminates against gays and lesbians seeking to serve their nation. The question deans across the country faced was whether the federal government could force law schools to violate their private policies against discrimination. Kagan believed the government didn't have that power.

Whether you agree with her view or not, plainly that question was central to her job as a dean. Her behavior, of course, reveals her own commitments to equality. But those commitments were plainly relevant to her job. She was strong and principled when it was within the scope of her role.

Finally, some have worried that Kagan has not pushed strongly enough to the progressive side as Solicitor General. But once again, the inference from her job to her views is unfair. The job of the SG is to defend the policy of the government before the Supreme Court. The policy of the government gets set sometimes by the President alone (when he acts within his exclusive domain), and sometimes by the President and Congress (when the two branches pass a law). The SG is not philosopher in chief. She is not hired to decide what laws she likes and dislikes. Her job is to defend the government so long as a defense is constitutionally plausible. A plausible defense is plainly different from one's own view of the law. Were I SG, I would have defended the Sonny Bono Act in Eldred v. Ashcroft. I would have held my nose, but it would have been wrong for me to oppose it.

In all of these cases, my point is not that Kagan's work shows she is the progressive I know her to be. My point is different: That inferences from these cases that might conflict with a view of her as a modern progressive are invalid. They are not evidence of her views, they are evidence of how she did her job. And while they may not strengthen your confidence about her position as a modern progressive, neither should they weaken it.

The point can be made more generally. There are relatively few jobs in our society anymore where one is free to say what one believes, regardless of how it affects others or other institutions. The federal judiciary is almost one such job -- either within the context of a case, or outside the context of a case, with some limits on conflicts and propriety, a judge gets to say whatever he or she wants. A tenured professor is another such job. People in these jobs are free to say what they believe regardless of the consequence. They're free, consistent with their jobs, to make enemies. Not that that's a good strategy for advancement -- no Republican had the courage to appoint perhaps the greatest judge of our time to the Supreme Court, Richard Posner, precisely because he said too much of what he believes; and it took extraordinary courage by President Obama to appoint Cass Sunstein to OMB, possibly the brightest legal scholar of our time, and certainly among the most prolific, despite the fact that he said many things that could be FOX-ified to make him look extreme. In both cases, the privilege of free speech is not free. But in drawing an inference about who someone is, you can't confuse what they say when they're free to speak with what they say when they work for someone else. Dissembling and pandering is a sin no doubt. But excessive personalization is a kind of self-importance that none should reward.

The bottom line calculus for me in this case could not be clearer. Obama's second Supreme Court appointment will still leave the balance of power in the Supreme Court tilted to the right. What progressives need most now is someone with the right views, and a deep sense of how to fight to get a majority to recognize those views as law. It's not enough to appoint someone who will cast the right vote. We need someone who will make majorities.