James Petras
My Catbord Seat
May 13, 2010

President Obama has nominated Elena Kagan for Justice of the United States Supreme Court on the basis of an academic publication record, which might give her a fighting chance for tenure at a first rate correspondence law school in the Texas Panhandle.

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Kagan’s nomination to the US Supreme Court is not exceptional if we consider many of Bush and now Obama’s choices of advisers and officials in top policymaking posts.

A review of her published scholarship after almost two decades in and out of academia turns up four law review articles, two brief pieces and several book reviews and in memoriam.  There is nothing even remotely resembling a major legal text or research publication.

Her lack-luster academic publication record is only surpassed by her total lack of any practical experience as a judge: zero years in adjudication, unless one accepts the line of her exuberant advocates, who point to Kagan’s superb ability in adjudicating among the squabbling faculty at Harvard Law School when she served as Dean.  No doubt Kagan had been very busy as the greatest fundraising Law School Dean in Harvard’s history ($400 million), which may account for the fact that she never found time to write a single academic article during her nine year tenure (2001-2009).

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The criteria for her appointment to the Supreme Court have little to do with academic performance as it is understood today in all major universities.  Nor does her total inexperience as a judicial advocate compensate for academic mediocrity.

The evidence points to a purely political appointment based, in part, on social networks and certainly not on her lack of affinity for the agenda of the liberal wing of the Democratic Party.  Kagan’s approval of indefinite detention of suspects squares with the extremist restrictions on constitutional freedoms first articulated during the Bush Administration and subsequently upheld by President Obama’s Attorney General Eric Holder.  It is no coincidence that Kagan appointed a notorious Bush torture advocate, the genial Jack Goldsmith, to the Harvard Law faculty.

Elena Kagan’s appointment certainly was not based on “diversity”.  She will be the third Jew on the Supreme Court and, together with the six Roman Catholics, will decide the most critical cases with far-reaching and profound impact on citizens’ rights and protections.  For the first time in US history the nation’s largest demographic group, the Protestants (of any hue or gender), will have no representative on the Court, thereby excluding the descendents, like retiring Justice Stevens, of the brilliant, strongly secular judicial heritage that formulated the US Constitution, the Bill of Rights and its amendments.

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