Hype for Elena Kagan—Round Two

The last time we went through the Supreme Court nomination process, there was a veritable groundswell of hyperbole for Elena Kagan — so much so that I couldn’t resist writing about it  here. The theme is ethnic networking. How else explain the fact that someone with a completely undistinguished scholarly record not only got tenure at the University of Chicago but was appointed dean of Harvard Law School?

She had exactly two publications in law review journals when she got tenure and has done very little since. A record like that would be a tough sell for tenure even in the nether regions of academia, never mind the most elite schools in the land. But now her lack of publications is seen by her supporters as an asset: She has no embarrassing paper trail on controversial issues.

Once again, the same people are hyping Kagan as absolutely brilliant. In a recent Huffington Post article (“Elena Kagan Emerging As Supreme Court Front-Runner“), Charles Fried says, “She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically. … She has quite a strong personality and a winning personality. I think she’s an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person.” Presumably she can also walk on water.

Fried also praised Kagan effusively in the earlier round, along with Laurence Tribe, another Jewish Harvard Law professor. As I noted, “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.

The religion/ethnicity issue rears its head only slightly: “There has been some superficial concern over Kagan’s religion — not because she’s Jewish but because without Stevens there will be no Protestants on the court.” And Kagan would be the first open homosexual on the court.  (Actually, it’s surprising we aren’t hearing more about this, given how controversial sexual orientation and issues like homosexual marriage are these days.)  But not to worry: “These are distractions not speed bumps, strategists predict, if Obama chooses to go with Kagan.”

No White Protestants on the Supreme Court in a country that in living memory thought of itself as WASP at its very core. But, with Kagan, there would be three Jews and no White Protestants. Who exactly are these “strategists” and what is the goal of their strategizing?

The really amazing thing is that Kagan is being framed as a conservative. But on the issues that really count — issues related to multiculturalism, executive power, and free speech, there is every reason to suppose that Kagan is on the left: Her record

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.

It’s noteworthy that the organized Jewish community has a long record of opposing free speech related to multicultural issues not only in the US, but in a wide range of other countries. Kagan’s views fit well with the views of the organized Jewish community: Every effort should be made to restrict “hate speech” within the current legal context, but to do whatever possible to change the context so that such speech is outlawed.

Further, as the HuffPo article notes,  “the praise from conservatives may sound damning to those who worry that the court is … too willing to accommodate the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee policy.”

The promotion of a strong executive branch and lack of concern for civil liberties is exactly the problem: The worst excesses of government power in the last century have come from the left. Knowing that Kagan advocates a powerful central government is hardly reassuring.

The picture that emerges is that of someone who would have no hesitation to expand the power of the federal government to end First Amendment freedoms and squelch any hope that a White racialist movement could achieve real power. Those ideas are entirely within the Jewish mainstream.

In summary, Kagan “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.” And in the long run, she would just love it if the First Amendment would be jettisoned entirely.

So the hype for Kagan is dishonest on two counts: First, there is no evidence whatever that she is brilliant; all the evidence is that she has achieved far more in the academic world and in government than she deserves  based on her actual performance. Second, she is inaccurately presented as a conservative. Her meager paper trail of academic writing  clearly indicates that she would be a staunch warrior on the side of the multicultural left on critical issues like free speech.

And despite all the hyperbole from “conservatives” like Charles Fried, I suspect the people who are promoting her are well aware of that fact.