Elena Kagan College Years: Who Cares?

elena-kagan-thesis-photoEarlier 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.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. carpeicthus says:

    My thesis was on Columbine. According to Erick Erickson’s “logic,” I am a spree killer.

  2. Zelsdorf Ragshaft III says:

    Carp, did your thesis condemn or glorify spree killing. Was a course in logic included in your studies? Joyner is a closet liberal who is more interested in what a mole does to gain entry into the system rather than what the core beliefs of that mole are. I see nothing in her resume that would indicate she has any experience which would change her from her socialist beliefs. The question should be. Do we want someone who does not believe in America’s core values sitting on the bench of the Supreme Court? Why insist justice be bias? Hey, James, do you think what William Ayers did during his college years make a difference?

  3. hjp says:

    Being a graduate from an Ivy League school is not a negative. The negative is that the Supreme Court is losing Educational Diversity amongst its members. A very simple example could be vanilla ice cream. Everyone likes vanilla ice cream. The problem arises when you limit your diet exclusively to vanilla ice cream. You get lots of calcium, but you lose out on all of the other needed vitamins and minerals to live a healthy productive life. The same can be said about losing the diversity of knowledge and diverse perspectives that people from other institutions can provide. The majority of the Supreme Court Judges should not be Ivy League graduates.

  4. hjp says:

    The following applies to Kagan, just as it did to Sotomajor.

    This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk’s collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

    Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

    Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor’s diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

    Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

    A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

    Harvard –

    Chief Justice John Roberts
    Anthony Kennedy
    Antonin Scalia
    Stephen Breyer
    Ruth Bader Ginsburg (Harvard, Columbia)

    Yale

    Samuel Alito – Yale JD 1975
    David Souter
    Clarence Thomas – Yale JD 1974
    Sonia Sotomayor – Yale JD 1979

    Northwestern Law School.

    Justice John Paul Stevens

    The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.

    Yale – Bush Sr. – 4 years
    Yale Law – Clinton – 8 years
    Yale – Bush, Jr. – 8 Years
    Harvard Law – Obama – 4 – 8 years

    When we consider that our Nation has potentially twenty – eight years of Presidential influence from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation’s policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top Colleges and Universities in America.

  5. TangoMan says:

    We can see the transcripts of a candidate for the Supreme Court but all similar information for the President is locked in a bunker at the center of the earth. I think that we’ve got our priorities backwards.

  6. anjin-san says:

    The Kagan nomination actually reminds me a lot of the Roberts nomination. Democrats were not thrilled about Roberts, but it was clear that he was a qualified nominee, and Bush was entitled to his choice. I don’t think there is a reasonable argument to be made against either choice, and attempting such an argument is pretty much a symptom of placing partisan politics above the good of the country.

  7. I was an Objectivist for a few months around that age and wouldn’t want to be judged based on that these days. As usual, we agree James.

  8. Bob says:

    This whole article is incorrect in saying that she does not agree with the radical political movement. It’s hard to believe that anyone would spend countless hours to write a 150-page thesis on something she doesn’t agree with? If you say that her beliefs do not reflect her works, then think again. READ HER THESIS. She is completely against free speech. We cannot allow her to be interpreting the constitution and shaping our laws if is against the very document itself.

  9. Anderson says:

    It’s hard to believe that anyone would spend countless hours to write a 150-page thesis on something she doesn’t agree with?

    Dumbest comment ever?

    My bookshelves are replete with tomes on Soviet Russia, the Nazi regime, and for that matter several medieval monarchies, none of whose authors I ever dreamed were “in agreement with” Stalin, Hitler, or even Charles V.