Elena Kagan College Years: Who Cares?
Earlier in the week, we were treated to a discussion about Elena Kagan’s 1981 senior thesis at Princeton, “To the Final Conflict: Socialism in New York City, 1900-1933.” In a Newsweek Web Exclusive, we learned that, despite some sympathy for the broad goals of the movement, Kagan isn’t a socialist and is both philosophically and practically opposed to radicalism. Seth Colter Walls:
Kagan’s thesis itself spends quite a lot of time in its early stages detailing the offensive working conditions in New York sweatshops—ranging from obscene working hours to sexual abuse—the banishment of which we largely take for granted today. You don’t have to be a radical to lament the fact that the activists who pushed back against that noxious state of affairs descended into bickering and, per one of Kagan’s juicier historical finds, chair-throwing at meetings.
Perhaps this is why nothing about this came up during the Senate confirmation hearings after Kagan was nominated to become President Obama’s solicitor general. Because there’s simply not anything at all that’s radical here. But as long as we’re armchair philosophizing about what a 29-year-old thesis may reveal to us about Kagan’s present political philosophy (and as long as my editor makes me speed-read a 150-page PDF during lunch!), let’s consider the reverse for a moment. Instead of exposing her as a radical, what if it gives us clues as to her moderation?
Let’s see, then: suspicious of closed circles, moderate-minded, and willing to work with foes to find common ground. Sounds rather a lot like what we’ve heard about Kagan herself, right? The charmer who finds friends on both sides of the aisle, etc. What if, 29 years ago, when Kagan was researching the dismal outputs of fierce radicalism as a vehicle for left-liberal political change, she came down with the moderates as opposed to the radicals? It doesn’t make for great cable-news outrage, but it’s at least as compelling a hypothesis as one borne from reading only the acknowledgments and conclusion from her senior thesis.
Erick Erickson, who had the entire thesis posted until Princeton demanded it be pulled on copyright grounds, says it “proves Elena Kagan is an open and avowed socialist. The woman declares that socialists must stick together instead of fracture in order to advance a socialist agenda, which Kagan advocates.” Based on the excerpts Walls provides — which are the ones most frequently cited by critics — it appears the more moderate interpretation is more reasonable.
Regardless, however, these are the musings of a kid a week shy of her 21st birthday. She’s done 29 more years of living since then as an adult. Wake me when you find evidence of radical socialism during that period.
Next, we were treated to a close examination of her law school transcript. Jess Bravin reports for WSJ that Kagan was a “B” student! Well, actually, she got a B- in Torts, a B in Criminal Law, and a B+ in Administrative Law her first semester. After that, it was all A or A- grades.
In her application packet for a clerkship with Justice Thurgood Marshall — for which she was accepted — her professors explained away her “bad” grades:
“I am looking at her transcript as I write, and there’s just no doubt that her first-year spring-term grades…not the [lower] fall-term ones, are the true reflection of her capacity and her learning,” wrote Prof. Frank Michelman.
“In addition to her insight and diligence, Ms. Kagan is a polite respectful person with whom it would be a pleasure to work,” Prof. Randall Kennedy wrote to Justice Thurgood Marshall. Kennedy was then a young scholar who himself had clerked for the justice a few years before.
“She is soft-spoken and delightful to be with, but razor-sharp and iron-hard in intellectual give and take,” wrote the late Prof. Abram Chayes, who had clerked for Justice Felix Frankfurter and served as the top State Department lawyer under President John F. Kennedy. “Her limpid writing ability and keen editorial skills have made her a mainstay at the [Harvard Law] Review,” he added.
But, again, I’m more interested in the fact that she managed to get one of only 27 clerkships to the Supreme Court and her career since then than in her grades her first semester at HLC.
Part of this is a function of the fact that there’s a long period between the announcement of a president’s nominee and the ultimate confirmation vote in the Senate. Because Supreme Court picks are big news and of interest to people who follow politics, reporters have to write about something. It’s like all the coverage of the NFL between the Super Bowl in early February and the opening kickoff the next September. There’s more fan interest and space to fill than there is news, so most of the coverage is idle speculation and nonsensical blather.
But it’s also partly attributable to the recent trend, much discussed here and elsewhere, of nominating to the Supreme Court people with short paper trails. Because Kagan hasn’t authored dozens of appellate opinions or written books advocating for views on controversial issues of the law, we’re left to speculate on how she might rule in the future by looking at whatever tea leaves we can unearth. But that doesn’t make it any less silly.