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Gerber and Hawley

Elena Kagan and the Return to Feudalism


Monday, June 7, 2010

We expect that Elena Kagan will be confirmed to the U.S. Supreme Court and we wish her well. We agree with former First Lady Laura Bush that it's "great" that it's now becoming commonplace to nominate women to the nation's highest court.

But we are gravely concerned about a more subtle message Kagan's nomination is sending to the people of the United States: a return to feudalism in American law.

Feudalism In the Modern Era

Feudalism, as readers may know, is a medieval concept in which the social order is based on status and rank. People are not free and equal. Rather, they are embedded members of hereditary groups. In feudalism's idealized form, the Norman system introduced in England in 1066 by William the Conqueror, people were born and lived their lives within a specific class—as lords, vassals, peasants, or serfs—and the principal purpose of law was to preserve this hierarchical social order.

America was founded as a rejection of feudalism. In 1776, the political theory of John Locke—feudalism's most powerful critic—was articulated by Thomas Jefferson in the Declaration of Independence as "an expression of the American mind." And James Madison wrote that same theory into the U.S. Constitution in 1787, prohibiting the state from conferring advantages, or imposing disadvantages, on the basis of a person's class, hereditary status, or personal connections.

President Obama apparently remembers none of this. His nomination statement about Kagan was little more than a laundry list of her elite status: former law clerk to a Supreme Court justice, former professor at the University of Chicago Law School, former dean of Harvard Law School, and current solicitor general of the United States. The president said nothing about what contributions Kagan had made to the law.

Revealingly, when skeptics deigned to raise questions about Kagan's actual accomplishments, her social equals rallied to her defense, largely on the basis of her status as a Harvard-educated lawyer. For example, Professor Mark Tushnet, a colleague of Kagan's at Harvard Law School, posted a sympathetic assessment of the one article Kagan published at Harvard to get tenure there. Equally problematic, another former Harvard colleague, Christopher Edley—now the dean of UC Berkeley School of Law—published an op-ed in the Washington Post in which he defended Kagan's nomination because, if she's confirmed (a virtual certainty), the Court will then be comprised of Harvard and Yale law school graduates only.

Departing Justice John Paul Stevens, whom Kagan would replace, graduated from Northwestern, which Edley would regard as a "good" law school, not a "great" one. Never mind that even Stevens's conservative critics can't help but acknowledge his powerful intellect and impressive reasoning while on the Court: what matters to Edley is the law school Stevens attended in his 20's.

Elitism Run Amok

The elitism that Edley thinks is so wonderful—and that Tushnet works so hard to disguise—is a clear sign that the American legal profession is now feudalistic. There are no objective measures of talent in the law anymore, at least none that are used. Instead, elites rely on someone's resume (Edley), or provide a spirited defense of a colleague (Tushnet), as a substitute. A degree from Harvard or Yale marks someone as more qualified than someone else. Always. No exceptions. Who cares what the person actually accomplished.

Apart from her admission and subsequent graduation from Harvard Law School, what are Kagan's accomplishments in the law? Where is there evidence that she served any form of significant legal apprenticeship? A lot of light has been cast on Kagan's first oral argument before the Supreme Court, which was not much more than a few months ago. Before that, did she ever write a brief submitted to a court of appeals or the Supreme Court? Was she mentored by a lawyer who was skilled in such things, mundane as that might seem? No.

Instead, from all appearances, Kagan has been advanced from one important position to another, leaving no trail of accomplishment, but only memories of her collegiality. This is not meant as a criticism of Kagan—she will undoubtedly be a fine Supreme Court justice—it is meant as an indictment of a selection process that has all the legitimacy of droit de seigneur.

The cost of such relentless elitism is self-evident. Take Thurgood Marshall, for example—the justice for whom Kagan clerked. He went to Howard, not Harvard. But President Johnson actually cared about Marshall's record—Marshall, who argued and won Brown v. Board of Education, was one of the most accomplished civil rights lawyers in the history of American law—not merely his resume. President Obama, Dean Edley, Professor Tushnet, and their Cambridge-class might believe that the United States is doomed unless the American people acknowledge their station and allow their social betters to rule, unquestioned. But history suggests they are wrong.

Scott D. Gerber is a professor of law at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. Kevin Hawley is a distinguished practitioner in residence at Ohio Northern University College of Law.

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