Larry Lessig's "case for Kagan" is the opposite

[Jefferson23]

Tuesday, Apr 27, 2010 15:28 ET

By Glenn Greenwald

(updated below - Wednesday)

Harvard Law Professor Larry Lessig has a Huffington Post piece today making what he calls "The Case for Kagan" as Justice Stevens' replacement. But as anyone who reads it will see, it actually does the opposite: just as Walter Dellinger's paper-thin defense of Kagan did, Lessig's piece illustrates how Kagan has no meaningful record, no apparent beliefs, and no way for any rational, independent-minded person to assess the impact that she would have on the Supreme Court. She's deliberately kept herself as one vast, blank slate, and Lessig, while setting out to assuage progressive doubts about Kagan, does more than any person yet to prove why those doubts are so warranted. The fact that those most devoted to selling Kagan's candidacy are able to muster so little evidence speaks volumes, particularly when her defenders are very smart and talented lawyers (such as Lessig and Dellinger) adept at making something out of nothing.


Lessig, whom I like and respect, has known Kagan for 20 years. They taught at the University of Chicago Law School together. They "shared a subscription to the opera." And when Kagan was Dean of Harvard Law School, she lured Lessig away from Stanford and hired him at Harvard, publicly praising him as "one of the most brilliant and important legal scholars of our time." Today, Lessig returns the praise, heralding her "brilliance and strength," insisting that she's a steadfast "progressive," and assuring us all "that Kagan has the right views."

Would you like to know what's missing from Lessig's lengthy testimonial? A shred of evidence, specificity, and actions or statements from Kagan. In lieu of anything that a rational person could assess, he instead concedes that his "read of Kagan's politics comes from personal experience," and simply insists that he knows what a great Justice she would be and that you would think so, too, if you knew her the way he does. Apparently, Kagan harbors all of these steadfast, deeply held principles . . . that she's managed to keep completely hidden from public view during her two decades in various political and academic positions. As Kevin Drum says:


f Kagan's career has been marked mostly by positions in which she felt unable to publicly construct a track record of how she views the law, where does that leave the rest of us? Lessig himself may be convinced that Kagan has a sound judicial philosophy, but those of us who don't know her personally can be excused for wanting a little more.


Even in terms of Lessig's reliance on his personal knowledge of Kagan, he offers absolutely nothing to support his claims. Did she ever share with him her judicial philosophy, her views of the Constitution, her beliefs about the Court's role, her assessment of Bush/Cheney executive power theories? Not that he mentions. Although Lessig, to his credit, includes the caveat that "I hope it is obvious that I wouldn't say someone should believe this about her merely because I say it," the whole piece boils down, in essence, to: I know Elena Kagan better than you do. I'm here to say she'd be great on the Court. If one accepts the validity of Lessig's obviously valid warning not to believe something merely because he says it, then that negates his whole argument, since it contains little other than his personally vouching for Kagan's progressive greatness.






remainder in full: http://www.salon.com/news/opinion/glenn_greenwald/2010/04/27/lessig/index.html

[DURHAM D]

1. Having been married to a law professor for many years let me just say -

they share their judicial philosophy. All the time. Talking about/arguing is what they do. To the exclusion of other conversations. They are attorneys after all.

Note: No longer married to said law professor - just friends. I already checked in with X to ask about Kagan. Knowing that I am way to the left of center I was told by my X not to worry.

[Jefferson23]

2. I'm sure you can appreciate concerns, as the present court is

one that carries great power, not all for good, and for generations to come.

I want Obama to error on the side of caution, there is too much at stake.

[DURHAM D]

3. Given that Obama is a conservative -

I would not expect his appointments to do anything other than shift right.

My only hope is that the tilt is only a little right. I am afraid that the next appointment is where the most change will occur.