Saturday, May 23, 2009
The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS
I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response.
In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.
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In a way, aren't you making Long's argument, or at least something somewhat similar to it? I take Long's broader argument to be that conservatives shouldn't think Kagan is so great just because of who was hired at Harvard when she was Dean. She opts to look at the total # and % hired, which I think is faulty for a number of reasons (some of which you mention). But I gather you somewhat agree with the broader point that conservatives shouldn't swoon over Kagan merely because of Harvard Law faculty hiring when she was Dean.
Posted by: Orin Kerr | May 23, 2009 8:48:28 PM
I think the point I was making was that no one (conservative or liberal) should, in the course of assessing future SCT Justice worthiness, swoon over *any* dean's experience or achievements regarding any kind of faculty hiring. It's a largely irrelevant inquiry fueled by untrustworthy evidence. By contrast, Long thinks that the hiring stats of conservatives to the faculty is a useful measure of some relevant quality or virtue that would be interesting to conservatives assessing whether Kagan should be nominated and/or confirmed.
But yes, if there's a broader point that Long and I agree on, it is that Kagan's candidacy should not be advanced by her record of faculty hiring; where we differ is that it also should not be torpedoed, and I take Long's post to be interested in having that effect--but perhaps I'm wrong about that.
Btw, I can imagine that Kagan is the most "dangerous" of the leading 3 candidates (EK, DW, SS) to some partisan conservatives (like Long?) b/c of her relative youth (compared to Wood) and her reputation for skillful coalition building and getting along with everyone (compared to SS based on views articulated in the Rosen piece).
Posted by: Dan Markel | May 24, 2009 6:36:56 PM