Elena Kagan: Jewish Ethnic Networking Eases the Path of a Liberal/Leftist to the Supreme Court

Kevin MacDonald

May 20, 2009

A recent LA Times article, “Supreme Court Nominee has admirers left and right,” by David G. Savage and James Oliphant, although masquerading as news, is a brief for the candidacy of Elena Kagan for the position on the Supreme Court vacated by David H. Souter.  The article notes that she is well connected to top people in the Obama Administration, and there is effusive praise from two legal bigwigs, Laurence Tribe and Charles Fried, both of Harvard.

Kagan’s candidacy raises a number of issues. If nominated and confirmed, there would be three Jewish justices on the Supreme Court — all on the left. Jews are of course always overrepresented among elites — especially on the left, but 33% is high by any standard given that Jews constitute less than 3% of the US population. This is much higher than Jewish representation in the US Senate (13%) and the House of Representatives (~7%).  The last time I checked, if there were three Jews on the Supreme Court, the percentage would be about the same as the percentage of Jews among the wealthiest Americans.

Jews as one-third of the Supreme Court seems sure to raise the eyebrows among people like me who think that Jewish identity often makes a big difference in attitudes and behavior. And if there is one area where mainstream Jewish political identity has had a huge effect (besides anything related to Israel), it’s in attitudes and behavior related to multiculturalism. This is true of the Jewish mainstream across the entire Jewish political spectrum, from the far left to the neoconservative right. A major theme of The Culture of Critique is that Jewish identities and interests were apparent in all the Jewish-dominated intellectual movements of the left that have rationalized multiculturalism, massive non-White immigration, and the general displacement of Europeans:

Viewed at its most abstract level, a fundamental agenda is thus to influence the European-derived peoples of the United States to view concern about their own demographic and cultural eclipse as irrational and as an indication of psychopathology. (Ch. 5 of The Culture of Critique; emphasis in original)

Kagan seems to have lived a charmed life, with perhaps a whiff (or even a stench) of ethnic networking. At least one of the journalists writing the LA Times panegyric is Jewish (David G. Savage), and the two legal scholars who are quoted in the article (Fried and Tribe) are both Jews. In addition, Kagan was appointed Dean of Harvard Law by Lawrence Summers — also Jewish and with a strong Jewish identity. Summers and Kagan covered for Laurence Tribe when he lifted a passage from another scholar’s book without attribution. Ethnic networking is nothing if not reciprocal.

While Jewish activists are doing all they can to promote a Jew for this position, we don’t hear a peep from White Protestants — a group that dominated the Supreme Court for 150 years.  With Souter's departure, the only White Protestant left on the court is the superannuated Stevens, who is 89 and will doubtless be replaced by an ethnic minority if he retires during the Obama administration. (White males need not apply.)  When it comes to playing help-my-tribe battles, White Protestants are completely inept — in fact, they don't even play at all. 

Tribe’s praise for Kagan is particularly interesting: “She has an excellent chance, and she would be terrific. … She has a masterful command of so many areas of law. And she's been vetted and recently confirmed. Her writing is not voluminous, which is also a plus."

Indeed, her writing is not voluminous at all. In her entire career at the University of Chicago and Harvard — the very apex of elite academic institutions — she has written a grand total of 9 articles. Actually, her scholarly output is even less than that because two of these publications are book reviews and one is a tribute to Thurgood Marshall. When she received tenure at the University of Chicago in 1995, she had exactly two scholarly articles published in law journals — a record that would ordinarily not get her tenure even at quite a few third tier universities much less an elite institution like the University of Chicago.

But on the basis of this record and later work in the Clinton Administration, in 2003 she became the dean of Harvard Law School, the most prestigious law school in the country. She has yet to publish any articles or books since becoming dean. But now her lack of scholarship is called a plus by Laurence Tribe, presumably because her positions on many issues are unknown. (Doubtless if Kagan had a stellar scholarly record, Tribe would have seen it as a major plus.)

Not only does she have a weak record as a scholar, she has yet to argue a case as Solicitor General even though she had the opportunity to do so. Her next opportunity to argue a case will not happen until after the Supreme Court nomination process is over, so we will have no information on how effective she would be in fending off the arguments of the conservative intellectual heavyweights on the Court before this weighty decision is made. On the basis of the arguments she endorsed in the Solomon Amendment case (see below), one must assume that she would not fare well.

Nor are there any other discernible positives. As Savage and Oliphant note, “Kagan does not have the ‘real world’ experience in politics. …  It is not clear whether she has the "quality of empathy" Obama has said he wants in a nominee. But she has had an uncanny knack for winning important admirers and avoiding enemies in a series of top legal jobs.”

The only thing Kagan has going for her seems to be that important people admire her. She’s good at networking, and it would seem that many of her most prominent admirers are other Jews — liberal and conservative. (Tribe and Summers are liberals; Charles Fried is considered a conservative. Fried was Solicitor General in the Reagan Administration but voted for Obama.) Ethnic networking indeed!

This points to corruption in the Jewish sector of the American academic elite. Kagan’s path to the academic heights of the legal profession and perhaps to a position on the Supreme Court is not based on a solid record of scholarship or any other relevant experience, but on ethnic boosterism from other Jews. As I noted elsewhere, Jews are represented in elite American academic institutions at levels far higher than can be explained by IQ.

Kagan is a poster girl for Jewish affirmative action. Not only does she have no discernible skills that would warrant her high position as dean of Harvard Law — much less an appointment to the Supreme Court, she is boosted by another Harvard professor (Laurence Tribe) who plagiarized another scholar’s work. (Plagiarism seems to run rampant at Harvard Law. Norman Finkelstein provides a credible case that Alan Dershowitz plagiarized others’ work in writing The Case for Israel. Charles J. Ogletree Jr., an African American, was involved in double plagiarism: foisting off the plagiarized work of his assistants as his own.) And Kagan was appointed dean of Harvard Law by then-Harvard President Lawrence Summers who has massive ethical problems of his own related to shielding another Harvard professor, his friend and protégé Andrei Shleifer. Shleifer  was found liable by a federal court in 2004 for conspiracy to defraud the U.S. government for his activities during the transition to capitalism in Russia in the 1990s. Summers also accepted $2.7 million in speaking fees from companies that received government bailout money when he later became head of the National Economic Council.

What could we expect from Kagan on the Supreme Court? Kagan has been flagged by conservatives because of an amicus brief she and other law professors wrote seeking to strike down a law that prohibited colleges and universities that ban military recruiting on campus from receiving federal funds. The motive behind the brief signed by Kagan was to protest the military’s policy on homosexuality. Their arguments were rejected 8-0 by the Supreme Court, indicating that even the Court liberals thought it was completely outside the mainstream.

This strongly suggests that Kagan would be quite willing to fashion her legal arguments to attain her liberal/left policy goals, and that is exactly what her other writings show. Her 1993 article "Regulation of Hate Speech and Pornography After R.A.V," (60 University of Chicago Law Review  873; available on Lexis/Nexis) indicates someone who is entirely on board with seeking ways to circumscribe free speech in the interests of multicultural virtue: “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.” She acknowledges that the Supreme Court is unlikely to alter its stance that speech based on viewpoint is protected by the First Amendment, but she sees that as subject to change with a different majority: The Supreme Court “will not in the foreseeable future” adopt the view that “all governmental efforts to regulate such speech … accord with the Constitution.” But in her view there is nothing to prevent it from doing so. Clearly, she does not see the protection of viewpoint-based speech as a principle worth preserving or set in stone. Rather, she believes that a new majority could rule that “all government efforts to regulate such speech” would be constitutional. All government efforts.

And until that day comes — doubtless speeded by her arrival on the court, she advocates finding ways to rationalize restrictions on free speech within the current guidelines of the court.  Her article proposes a variety of ways that “hate speech” may be restricted without running afoul of current Supreme Court guidelines. For example, she supports the constitutionality of “hate crime” laws that enhance penalties for crimes motivated by racial bias — precisely the sort of law recently passed by the House and now being considered by the Senate. Such laws have been strongly promoted by the organized Jewish community and condemned by conservative legal scholars as creating special victim categories and destroying federalism because they punish acts that are already illegal in the states.

Kagan’s conclusion shows where her heart is:

[Efforts to draft restrictions on speech] will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving. They, and other new solutions, ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment.

For Kagan, the crusade to restrict speech is motivated by her feminist and leftist political attitudes. Indeed, her 1993 paper was originally presented at a conference titled, “Speech, Equality, and Harm: Feminist Legal Perspectives on Pornography and Hate Propaganda." She sees her job as a legal scholar to find a way to ensure that these goals are achieved while paying lip service to the legal tradition of the First Amendment. Indeed, she sees heavy-handed attempts to restrict free speech, such as the Stanford speech code, as counter-productive because they make “the forces of hatred into defenders of Constitutional liberty” and because they are so unreasonable they invite criticisms of the rest of Stanford’s race and gender policies.

In a revealing comment, she notes that those who want to restrict speech in heavy-handed and unconstitutional ways are motivated by the stubborn failure to close the racial gap:

The magnitude and duration of these inequalities may make them impervious to political (let alone to academic) efforts. We do not know how to solve these problems; we may not even know how to talk (or perhaps we are afraid to talk) about them. So some succumb to the allure of sideshows such as the one involving the Stanford Policy.

Given what many believe is the biological basis of these racial differences and recent reports that the racial gap in education is not narrowing despite the No Child Left Behind law aimed at raising the scores of Blacks and Latinos, I suspect that this temptation to restrict speech will be increasingly irresistible in the future. And if Kagan is on the Supreme Court, we can certainly expect that she would vote for such restrictions. Her heart, as I am sure Obama must know, is definitely in the right place.

They say politics is the art of the possible. For Kagan, law is also the art of the possible. There are no principles. Only better or worse tactics for achieving her policy goals.

Kevin MacDonald is a professor of psychology at California State University–Long Beach.  Email him.

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