You make an excellent point about needed more than unofficial testimony. As I mentioned, I do not know how she would be as a judge. My sense of her was that she was not closed minded in the way that Roberts' writings demonstrated with his clever results-oriented intellectual gymnastics.
But, I agree strongly with you that the American people deserve to know more, much more, about the people who are being entrusted to serve for the rest of their lives on the highest court in the country. And, I am hoping that more information about Kagan will become known so that people can weigh on on the appointment, as the confirmation process is regrettably the only current democratic check on the court. I think that needs to be reformed.
On the consensus builder front, I agree that that "skill" is very over-rated and even worrisome. There are far more important qualities for a judge than that. Plus, I think there are many issues where "compromise" is just compromising in the perjorative sense. I don't want the Fourth Amendment's warrant requirement, for example, to be watered down to get "consensus"--I want it enforced fully by the courts. And there are many more rights I think we must demand be protected not mediated....
Thank you for writing! Lisa
Thank you so much for your note!! The right-wing in our political system, which has adherents from both major parties, is indeed damaging our legal system and our future....
Dear W.I.D.--
You make some interesting points here about the extent to which the Supreme Court does not reflect the diversity of religious and socio-economic experiences of the American people. I'm not in favor a rigid representation statistically, but as you point out the stats seem greatly out of proportion.
And, on the Federalist Society front, that is another way and a far more telling way that the Court's membership has been distorted by interest groups than religious affiliation. After all, one's religion does not necessarily dictate one's view on policy issues as there are Democrats, Republicans, Independents, Greens and others who are Jewish or Catholic or Christian or hale from other religions or none. But there are no Democrats or Greens that are Federalist Society members (although some have been invited to participate in Fed-Soc "debates"), or almost none. The Federalist Society membership demonstrates an ideological commitment to moving the law in a particular direction on a range of legal policy issues, even though the feudalists (and I mean that term as a better description than "federalists") claim not to have particular positions. They are really the "true believers" of a set of tenets that endorse an expansive view of executive power and corporate power and oppose liberties and protections for ordinary people in general, although sometimes their corporatist policy preferences also benefit some individuals incidentally. Their positions, or what might be called the focus of their intellectual energies, are outside of the mainstream. When I was working for the Senate Judiciary Committee, over half of President George W. Bush's appellate nominees were associated with the Federalist Society, which was said to be helping select candidates for the bench for G.W....
And, as for Harvard and Yale, as a Cornell Law grad I suppose it might sound like sour grapes for me to complain about the domination of these schools in judicial selection. I do think the federal bench would benefit from greater diversity of experience, including educational diversity and the economic diversity that sometimes reflects. At the same time, it is plain to me that growing up poor does not necessarily make someone compassionate for the plight of those less fortunate, as Clarence Thomas demonstrates in almost every opinion he writes.
That is, none of these attributes (religion, education, economic background) are adequate proxies for wisdom, fairness, and compassion.
Thank you for writing in! Lisa
Dear Jerry:
With all due respect, the claims about Kagan and the law professors seem like quite a smear to me.
As Dean of Harvard Law School, she appointed a committee to investigate allegations of plagiarism by Professors Ogletree and Tribe, which was the appropriate procedure for such an investigation of academic conduct. The investigation of Professor Ogletree revealed that a passage of a book he published contained unattributed material that was prepared by law clerks, to whom he had delegated research and writing. I don't think any objective reader could reasonably find that Professor Ogletree intentionally plagiarized a colleague, but he did apparently trust that his research and writing staff would not engage in plagiarism. The idea that Kagan should be disqualified from serving on the Supreme Court because student researchers for a book she did not write or publish or have anything to with failed to document their sources is a bridge too far.
As for Professor Tribe, it reads to me that the committee was critical of his failure to cite material 25 years ago in a book that was not the kind that involved footnoting but that should have used quotation marks for the material at issue from another book he credited in that book. That is to say, the Committee took issue with his actions a quarter century ago but did not fire him. To suggest that Kagan engaged in any disqualifying conduct here by not overturning the recommendation and criticism of the committee investigating the allegations against Professor Tribe is really stretching it.
These claims are pretty slender reeds to suggest that she herself would not properly cite referenced material if she were confirmed. There is no allegation in these claims that she engaged in any plagiarism herself. I think this sort of re-hashing of someone else's conduct and trying to pin it on her is real reach. Should she have reprimanded them further? It seems they were humiliated by the investigation she authorized, whereas if she were like President Bush and Attorney General Gonzales, she never would have allowed an investigation into any claims of misconduct of key personnel who worked for her, as they blocked efforts to appoint an independent counsel to investigate claims of warrantless wiretapping and torture, far more serious matters. Instead, she approved an investigation and there were no apparent grounds for her to overturn the results of that investigation. To suggest a character flaw on her part for all this is really too much.
Lisa Graves
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