The nomination of solicitor general Elena Kagan to the U. S. Supreme Court gives us a chance to reflect, not so much on her qualifications for the bench but how her career trajectory illustrates the manner in which academia provides an outlet for activism, perhaps at the expense of scholarship.
We can see this trend illustrated in the endpoints of the arc of Kagan’s private sector career, from her senior thesis at Princeton to her tenure as dean of Harvard Law. In the former, she lamented that, “In our own times, a coherent socialist movement is nowhere to be found in the United States.” In the latter milieu, she may have refused to allow military recruiters on campus.
“Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her three-decades-old dissertation. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter.”
“Such a state of affairs cries out for an explanation.” This she had endeavored to do in the previous 126 pages of the paper, which was entitled, “To the Final Conflict: Socialism in New York City, 1900-1933.”
In the acknowledgements she writes, “Finally, I would like to thank my brother Marc, whose involvement in radical causes led me to explore the history of American radicalization in the hope of clarifying my political views.” This she clearly did in her conclusion.
“The story is a sad but chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she concludes. “Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe.”
“Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”
To be fair, the paper does what it sets out to do in an extensively, documented, reasonably well-written fashion. Nevertheless, there is one curious omission in the draft, delivered on April 15, 1981.
She writes about how the defection of socialists to the Communist party drained the Socialists of members and cites one of the prominent defectors–John Reed. What she does not even note in passing is Reed’s disillusionment with the Soviet Union itself, where he is buried.
Reed’s epiphany is so well-known among his admirers and detractors alike that even auteur Warren Beatty, not a right-wing zealot by any means, felt compelled to devote about one-third of his mostly adulatory three-hour biopic on Reed to it.
Now let’s go back to the future. Elaine Donnelly of the Center for Military Readiness notes, “It is unfortunate that President Barack Obama has chosen to replace the only military veteran on the Supreme Court with extensive wartime experience with a nominee whose only significant record indicates deliberate hostility and opposition to laws protecting the culture and best interests of the American military.”
“Senators considering this nomination should question Elena Kagan’s flawed logic and anti-military attitude that she expressed by signing an amicus brief challenging the Solomon Amendment in Rumsfeld v. Fair,” Donnelly continued. “It is significant that the U.S. Supreme Court upheld the constitutionality of that legislation, which protects equal access for military recruiters on college campuses, with a unanimous (8-0) vote. Even Justice Ruth Bader Ginsburg did not agree with Kagan’s anti-military views.”
“In addition, Elena Kagan’s record as Solicitor General should be considered a serious problem. In her current capacity, Kagan failed to appeal the unjustified and problematic procedural ruling of the Ninth Circuit Court of Appeals in a case challenging the 1993 law stating that homosexuals are not eligible for military service.”
In between the presidential elections of 1980 and the 2008 contest, Kagan has also penned 5 law review articles, an unusually low total for a law school professor, let alone a dean. The Cybercast News Service unearthed one of these.
In the University of Chicago Law Review in 1996 Kagan wrote, “If there is an ‘overabundance’ of an idea in the absence of direct governmental action–which there well might be when compared with some ideal state of public debate–then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse.”
Of course, she will be able to write much more if, as seems likely, the U. S. Senate confirms her nomination to be one of the Supremes.