President Barack Obama last week presented U.S. Supreme Court nominee Elena Kagan as one of the nation's "foremost legal minds." But is the former Harvard Law dean actually scholar-lite?
Some academic and political commentators questioned her slim body of scholarship given her 14 years in academia -- eight as a teacher and nearly six as dean.
It is not just the number of her scholarly articles -- essentially four major and three lesser ones -- that bothers Kagan skeptics, such as Paul Campos of the University of Colorado School of Law. More important, said Campos, is the lack of any discernible personal opinions on the issues addressed.
While teaching at the University of Chicago and Harvard, Kagan clearly did not write as much or reveal as much personal opinion in her writings as many of her peers at major law schools did before becoming deans, even during a similar time frame. Some of them moved into the top job with nationally recognized credentials and clear views, such as constitutional scholars, like Larry Kramer, dean of Stanford Law School, or as environmental scholars, like New York University's Richard Revesz. Others, such as Harold Koh, former dean of Yale Law School, not only churned out books and articles but wrote legal briefs and argued cases in the U.S. Supreme Court.
But in interviews last week with seven current and former deans at top law schools, most echoed an assessment by Revesz who said, "I don't think there is a 'one-size-fits-all' rule around teaching and scholarship."
And for many of them, scholarly work dropped to a trickle when they became deans. "A significant amount of time is spent fundraising, with a lot of traveling, sometimes outside the United States," said Davison Douglas, dean of William and Mary Marshall-Wythe School of Law. "That's where a lot of the squeeze is."
Stanford's Kramer graduated from law school two years earlier than Kagan and, like her, was a Supreme Court clerk. Unlike Kagan, he produced more than a dozen articles in his first four years of teaching. But he said he wrote only one article in his first or second year as dean, "effectively based on leftover research."
The exception is Saul Levmore, who stepped down last December as dean of the University of Chicago Law School, noted some of his colleagues. "I didn't find it that hard," said Levmore, who had more than 20 law review articles published and launched a faculty blog during his eight years as dean. "I did some teaching and writing. But this is a much smaller law school than [Kagan] had."
Evan Caminker, dean of the University of Michigan Law School since 2003, said deans can stay connected with scholarly work through the appointment and tenure processes, faculty workshops and by reading scholarly papers. But writing, he said, demands large blocks of time for reading, thinking, drafting and redrafting.
The deans are less than unanimous on the quantity/quality question. Some schools emphasize quantity, particularly for beginning professors, while other stress quality -- does the article make a major contribution. At "very high-end" law schools, Levmore said, there is a demand for both.
After four years in the Clinton administration, Kagan went to Harvard as a visiting professor in 1999 and became a full professor in 2001 and dean in 2003. Harvard, noted one dean, is not unusual in granting tenure even if a faculty member has written only one article. Kagan did write her most critically acclaimed article while at Harvard: "Presidential Administration."
Peter Shane, former dean of the University of Pittsburgh School of Law and an administrative law scholar, called her article a "must read."
"I say this even though I disagree with her conclusions in substantial respects," said Shane, now at Ohio State University Michael E. Moritz College of Law.
Erwin Chemerinsky, dean of the University of California, Irvine School of Law, said lack of scholarly work should not hobble Kagan's nomination. "Kagan has served in many roles: teacher, scholar, White House adviser, dean, solicitor general. It is possible to look at all of this and easily come to the conclusion that she is a brilliant woman."
Still, that's little comfort to Kagan skeptics. "If we had a healthier nomination and confirmation process, it wouldn't be a problem," Campos said. "But it's likely someone is going to spend 35 years on the Supreme Court without having to share any of her substantive views, and that is crazy."
Related stories: Keep up with The National Law Journal's continuing coverage of the Kagan nomination.