Bench Memos

On Tom Goldstein on Elena Kagan

On SCOTUSblog, Tom Goldstein and his colleagues have a long piece presenting Elena Kagan’s record and spinning their case for her. I will limit myself here to four comments:

1.  Goldstein states that Kagan, having “had some experience on Capitol Hill and significant experience in the Executive Branch, … has thus worked in the process of governing and does not merely come from what has recently been criticized (unfairly, in my view) as the ‘judicial monastery.’”  The statement that Kagan “does not merely come from … the ‘judicial monastery’” obscures the fact that Kagan has no judicial experience at all.  Moreover, there are several sitting justices—Roberts, Scalia, Thomas, and Alito, especially—whose path to the Court went through the “judicial monastery” but who previously had much more extensive “governing” experience than Kagan.

Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades.  In addition to zero judicial experience, she has only a few years of real-world legal experience.  Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.

In sum, Kagan’s record manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the manifold benefits of judicial experience.

2.  Goldstein maintains that Kagan’s position on the Solomon Amendment and on the underlying Don’t Ask, Don’t Tell law does not “reflect[] an anti-military bias” but instead shows that “Kagan believes in the principle of nondiscrimination, including with respect to homosexuals.”  I readily accept (or at least presume) that Kagan bears no animus against the military.  But Kagan elevated her own ideological commitment above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  As Peter Beinart, the liberal former editor of the New Republic, has written, her exclusion of military recruiters from campus is “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.” 

3.  Goldstein is correct to observe that Kagan, as Solicitor General, is generally obligated to defend the position of the government and that it’s therefore wrong to attribute to Kagan the views that she has defended in that capacity.  As he puts it, “For Kagan not to have zealously pursued the interests of the United States in each case would have been an abdication of her duties.”  What he overlooks is that there have been cases—involving the Don’t Ask, Don’t Tell law and the Defense of Marriage Act—where Kagan indeed appears to have abdicated her duties and to have instead indulged her own personal views.

4.  Goldstein repeats his effort to minimize the recusal obligations that Kagan would have as a justice as a result of her service as Solicitor General—an effort that rests heavily on Goldstein’s bizarre and unjustified assumption that Kagan, once nominated, “would begin recusing herself as Solicitor General” from further matters.  For some background, see my point 3 in this post and my follow-up.

As I’ve said, it’s of course reasonable to assume that Kagan, if nominated, would have to spend a substantial amount of time on her nomination.  As a result, she’d have to prioritize her duties as Solicitor General, and that prioritization might well reasonably entail limiting her involvement in new matters.  But “recusal” is exactly the wrong way to think about this process of prioritization.  Kagan would not be ethically disqualified from taking part in a matter as Solicitor General by virtue of the fact (or likelihood) that it would be before the Court at a time after her (presumed) confirmation and appointment.  Her duty as Solicitor General requires her to have the interests of her office in mind—and not her future interests as a justice or the supposed interests of the Supreme Court—in deciding which matters deserve her attention.  (It’s also worth noting that Goldstein does not even contend, much less establish, that Thurgood Marshall, the last justice who was appointed to the Court from the position of Solicitor General, undertook to “recuse” himself from any SG work upon his nomination to the Court.)

As Goldstein recognizes, one question where this distinction matters is whether Kagan’s name would continue to appear on briefs in cases on which she hasn’t worked.  (Goldstein sensibly assumes that Kagan’s having her name on a brief would be sufficient to trigger her recusal.)  Goldstein maintains that it “would in fact be essentially fictitious” for Kagan to sign her name to such briefs.  But since she would still be Solicitor General, it would be no less “fictitious” than the countless other such briefs she’s signed her name to over her tenure in the office.  Rather, it would reflect her continued real and official responsibility for all that happens under her control of the office.  There would be no justification for Kagan to change her signing practice upon her nomination. 

In sum, Goldstein minimizes the recusal obligations that Kagan would have as a justice only by concocting an ethically suspect path by which Kagan would instead purport to “recuse” herself from matters from which she is not ethically disqualified and that remain under her official responsibility.  It’s of course possible that Kagan would follow the path that Goldstein has charted.  But it would be much to her discredit if she does.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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