Strengthening Constitutional Self-Government

No Left Turns

Impertinent Voters Challenge Their Superiors

Jonathan Entin, a political scientist and law professor at Case Western Reserve University, is dismayed that political opponents to the nomination of Elena Kagan to the Supreme Court might not let her credentials speak for themselves.  "It says a lot about the state of American political discourse, that some of these folks want to have a serious debate about whether a former dean of the Harvard Law School who enjoys almost universal respect from colleagues of all philosophies and seems to have done an excellent job as Solicitor General is qualified to sit on the Supreme Court," Entin told the Huffington Post.  "Not that I'm surprised, given the degradation of civic culture these days."

Ah, for the good old days before the degradation of the civic culture.  Think back to the gentility with which the Senate considered the nomination to the Supreme Court of Samuel Alito.  That debate saw the 2004 Democratic presidential nominee try to prevent a vote on Alito's nomination with a filibuster, and the party's 2008 nominee join with all but four of the Senate Democrats to vote against Alito.

One thing the rabble who have the nerve to challenge a c.v. as golden as Kagan's might ask is a question posed by Peter Berkowitz in 2006 after the Supreme Court ruled unanimously that Congress has the right to withhold federal subsidies from universities whose law schools refuse to permit military recruiters to have the same access to their campus as other recruiters: "How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?"  Elena Kagan, dean of Harvard law school at the time, was one prominent law professor who argued that the schools were justified in refusing to let the branches of the U.S. military recruit on their campus, and still receive uninterrupted and undiminished federal funding, because of the schools' opposition to the "don't ask - don't tell" policy enacted by Congress and implemented by the Pentagon. 

But Kagan was only one of many such professors.  The list includes Laurence Tribe, Walter Dellinger, Harold Koh, and others.  "This dazzling array of eminent law professors," writes Berkowitz, "proved incapable - even after hiring the best Democratic party legal talent money could buy - of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court - Souter, Breyer, Ginsburg, and Stevens - or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts's opinion."

Let's hope that a few senators have the temerity to annoy Prof. Entin and question Ms. Kagan about her involvement in the case of Rumsfeld v. Forum for Academic and Individual Rights.  It would be good to know whether she views the military with a degree of contempt and hostility that is common in Cambridge but would be considered outrageous in most of the country.  It would be good to know, more generally, whether her academic training and credentials have estranged her from the country whose future she may play a decisive role in shaping until the middle of this century.

Discussions - 1 Comment

They should rake her over the coals.

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