Bench Memos

The Myth of Kagan and the Conservatives

President Obama is likely focusing on three frontrunners for the Supreme Court: Solicitor General Elena Kagan, Judge Diane Wood, and Judge Sonia Sotomayor.

All three are hard-left committed liberal activists. This poses a problem for the White House. A CNN poll this week shows that 72% of Americans want Obama to pick a moderate or a conservative for the Supreme Court (37% want a “moderate” for the Court and 35% want someone “very conservative” or “somewhat conservative”). Only 27% of Americans think Obama should nominate someone who is “very liberal” or “somewhat liberal” for the Supreme Court.

One reason he might opt for Kagan is that the White House and Senate Democrats think they can peddle the myth that Kagan is a “moderate” because, as Dean of Harvard Law School, she hired a slew of conservative and libertarian professors to teach law at Harvard. This is a gross exaggeration.

On the eve of stepping down from Harvard, Kagan sent alumni a memo about the major developments at the law school while she was dean from 2003-2009. The memo said that 43 faculty members were hired during Kagan’s five years, bringing the total number of faculty members to a count of 101.

Only 3 out of the 43 professors Kagan hired are conservative- or libertarian-leaning: Jack Goldsmith, John Manning, and Adrian Vermeule. That means only 7% of Kagan’s faculty hires were conservatives.

Not exactly a huge percentage. Overall, the Harvard Law faculty only has, at most, 8 conservative- or libertarian-leaning professors. They are: Charles Fried, Mary Ann Glendon, Allen Ferrell, Einer Elhauge, Hal Scott, plus Goldsmith, Manning, and Vermeule.

That means only 8% of the faculty under Kagan was conservative. Again, not exactly huge numbers when considered in percentage terms.

Also, Fried and Glendon are approaching retirement. Once they retire, the net effect of Kagan’s supposed conservative hiring binge will have been to increase the number of conservative faculty members at Harvard by one person.

Moreover, the three conservatives Kagan hired were not just conservatives, but her personal friends. Kagan and Manning served together as editors on the Harvard Law Review when they were law students;  Goldsmith and Vermeule taught, as did Kagan, on the University of Chicago Law School faculty.

These three men are very fine scholars and teachers.  But they do not in any way establish that Elena Kagan she would be a centrist or moderate Justice of the United States Supreme Court.

But her ability to convince many people — including a number of conservative professors and lawyers — that her faculty hires somehow make her a great friend of conservatives indicates something else: She is a skilled retail politician adept at winning support for her side. . . . the same skill used by the liberal activist Justice William Brennan to forge many 5-4 majorities that contorted the Constitution and undermined self-government by the American people by substituting the jurist’s own passion for the dispassion required to apply our Constitution and Bill of Rights to everyone equally, only as the laws are written.

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