Kagan to the Court: Examining the Downside

Law School AdmissionsIf you are an individual who remains connected to the news cycle (in whatever form that is now consumed), you know by now that Elena Kagan has been nominated for the open seat (formerly held by Justice Stevens) on the Supreme Court by President Obama and that her confirmation hearings before the Senate are set to begin on June 28. The process of putting a judge on the greatest bench in all the land is arduous and draining (check out Season One of The West Wing for a terrific inside look into the vetting process and tireless work required by White House senior staffers) and prone to surprises, but most believe that Kagan will ultimately be confirmed and take her place on the Court (described in terrific detail in this New York Magazine article). And as someone who has followed her career fairly closely, I believe she will make a great Supreme Court Justice and serve our country well in deciding the laws of the land.

That said, I can’t help but dwell on one nagging detail: what if Kagan’s value as a Justice is less than her value as an academic administrator?


Before moving forward, let me just state for the record that Elena Kagan should be able to pursue whatever career path she wishes and that no one can blame her for accepting what is arguably the most prestigious appointed position in the world (certainly in the judiciary). However, as someone who works with graduate school applicants for a living – and sees the exponential value of one great faculty member or one great administrator – I am troubled by the loss of one of the finest academic deans of my lifetime.

Understand also that this entire line of thought was relevant back in January of last year, when President Obama appointed Kagan to the position of Solicitor General – this was Kagan’s first foray back into government (between stints as a law school professor at the University of Chicago Law School and Harvard Law School, she served as Associate White House Counsel and policy adviser under President Clinton). Technically, the “we’ve lost Kagan from the academic ranks” hand-wringing could have been conducted back then. However, there’s a big difference between an administrative appointment and a Supreme Court appointment and those with even a passing knowledge of the Court know what that is: the latter is a lifetime appointment. Let’s be honest here, if/when Kagan flies through the confirmation process, this absolutely will be the last job she ever accepts.

For the lifelong member of the judiciary, this makes sense. We are elevating a skilled judge to the highest position in the land, which both serves as a culmination of that person’s career, but also undoubtedly the best social use of that individual’s abilities (we’ll save the whole “the most valuable judicial work is done in the lower courts” argument for another time and place). But someone like Kagan presents a different riddle. She is likely to be a terrific judge (again, my opinion, but obviously one shared by President Obama). But we already know that she’s a fantastic dean. We joined the party in heaping praise on her work at Harvard Law back in October of 2008, but it bears repeating that she seemingly single-handedly transformed Harvard from a grim, sterile “lawyer mill” into one of the most student-friendly, progressive, and vibrant law schools in the country. When I applied to law schools in 2002, I never even considered going to Harvard – it was viewed by many top applicants of the time as a great brand, but an awful experience. When I graduated from Chicago five years later (and four years after Kagan was named dean of the law school), HLS was already back on top, with a bullet.

Harvard Law didn’t reinvent itself overnight, but Kagan’s aggressive, insightful leadership made it seem that way. She pushed for new facilities, focused on improving the student experience, and created consensus among a famous and massive faculty that was previously known more for individual scholarship than cohesive teaching. And lest we think Kagan’s administrative skills were limited to day-to-day operations, she also exceeded expectations on the fundraising front – a “Setting the Standard” campaign (which she inherited) aimed for $400 million and finished in 2008 at $476 million. She also added powerhouse names to the faculty by going out and luring profs from Chicago and Stanford (folks like Cass Sunstein and Lawrence Lessig, who were thought to be untouchable) and even nabbing conservative powerhouses like Jack Goldsmith (Bush administration) to provide more balance. On top of all that, she showed a willingness to take important stances on social issues, famously restricting military recruiters from coming to campus due to the “don’t ask, don’t tell” policy (perceived as being discriminatory against gays and lesbians).

In summary, we are looking at an individual who stepped into arguably the highest profile dean position in academia and crushed the assignment. She raised money, she improved the quality of the faculty on every front, radically transformed the student experience, and even stood tall on policy issues. To say that accomplishing all that requires unique skill and a deft touch is a massive understatement. You could do so far as to say that no other dean could have done it.

If that last statement is true – or even partially true – we have to assess the loss to the academic community that Kagan’s Supreme Court nom represents. To me, it seems like a big one. She would have had her pick of academic jobs, where she could have made a massive difference in the lives of thousands – even hundreds of thousands – of students. And that, to me, is the downside to Elena Kagan heading off to the Supreme Court.

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