City of Brass

I had a twitter debate with Pejman Yousefzadeh about Elena Kagan’s qualifications for Supreme Court Justice. I honestly don’t really have any strong preference, but found the question of qualifications to be highly subjective.
Here's our debate in chronological order, starting with my reply to a tweet where he called Kagan a "cipher" (Note that the indented tweets are Pejman, addressed to me):

@yousefzadeh not a cipher at all. See @lessig rebuttal to @ggreenwald:

@azizhp @lessig spends more time writing about @ggreenwald than he does writing about Kagan.

@azizhp We all know that Diane Wood would have been the more substantive candidate.

@yousefzadeh we “all” know? I think not. Was never strongly in one camp or other. “substantive” is subjective.

@azizhp Do you doubt that Wood has the more substantive record?

@yousefzadeh I dont know how to quantitatively compare them. I do know Kagan is as qualified as William Rehnquist was.

@azizhp You can qualitatively compare them by seeing which one has published more. As a sitting judge, Wood is the clear winner.

@azizhp Given that Wood teaches as well, she runs up the score.

@azizhp Rehnquist was a practicing attorney for 20 years before being nominated, including a Supreme Court clerkship . . .

@azizhp . . . 16 years of private practice, and time in the Justice Department. No way Kagan matches that.

@yousefzadeh these are all qualitative comparisons., which remain subjective. To my eye, Wood, Kagan, and Rehnquist are all equal.

@yousefzadeh Kagan clerked for Marshall on SCOTUS. Tenure at UChicago. Numerouus law review articles. And then Dean of Harvard Law.

@yousefzadeh you can argue that X, Y are not enough and there should be more of Z, but thats entirely arbitrary.

@yousefzadeh Neither Rehnquist nor Kagan has prior judicial experience. Kagan’s academic record is superior to Rehnquist but lagged Wood’s.

@azizhp Rehnquist was the class valedictorian from Stanford Law School. Where do you get the idea that Kagan’s academic record was better?

@azizhp And while neither had prior judicial experience, Rehnquist had more experience than does Kagan, especially as a practicing attorney.

@yousefzadeh Kagan had tenure, published law review articles, and beccame Dean. Agreed Rehnquist had more “field” experience. apple, orange

@azizhp She most certainly does not have numerous law review articles. Her publication record is exceedingly thin.

@azizhp Rehnquist clerked for Justice Robert Jackson, spent 16 years in private practice, and 2 years at the Justice Dept.

@azizhp There is no way that Kagan matches that. And there is no way that you can call this judgment “subjective” with a straight face.

@yousefzadeh Kagan published at least two law review articles – rehnquist zero. Rehnquist had more trial experience, not academic.

@azizhp Again, Kagan’s publication record is exceedingly thin. She had tenure at Chicago, but it wasn’t renewed when she tried to come back.

@azizhp And it is by no means “apple, orange” to say that Rehnquist had much more experience than does Kagan.

@azizhp These are facts. You are not entitled to an alternative set of them, merely because you don’t like how they make Kagan look.

@azizhp And by the way, I write this as someone who is glad Kagan got chosen instead of Wood. Wood would be a power player from the get-go.

@yousefzadeh there are no “alternative” facts here, we have the same data. you are weighting some data higher than others.

@yousefzadeh I weight the data about equally – academics, private practice, clerkships, tenure. Rehn. and Kagan have different profiles.

@yousefzadeh But its you arguing on alternative facts if you insist that your weighting is objective. Its arbitrary (not wrong)

@yousefzadeh I dont have any strong feeling on Wood vs Kagan. I liked what @lessig said though. I’m satisfied.

@azizhp You conveniently forget all of the other things Rehnquist published:

@azizhp So as we see, Rehnquist’s publication record far exceeded Kagan’s.

@azizhp And this despite the fact that Rehnquist only taught during summer courses, and in visiting capacity when the Court was in recess.

@yousefzadeh why are you ascribing bias to me? nice list. Rehnquist’s publication list SHOULD be longer than Kagan, he served from 1971 on

@yousefzadeh filter your list to pre- and post 1971 to get a feel for relative record/relevance to qualification for being nominated

@azizhp Wrong. Rehnquist had more experience, and more publications. He wins outright.

@azizhp We are talking not just about opinions, but about books as well. Rehnquist’s publication list exceeds Kagan’s.

@azizhp More publications, more experience, clerkship with the Supreme Court; all of this combines to make Rehnquist the superior candidate.


I don’t think we will agree for precisely the reason I argued above – the question of what makes a candidate qualified is an inherently subjective one. The relative weighting you assign to the data points (years in private practice, judicial experience, academic record, papers published, other writing, etc etc) is completely arbitrary – Pejman dismisses most of Kagan’s career and points to Rehnquists’ years in private practice and Wood’s status as a sitting judge as proof of superiority.

Note however that contrary to Pejman’s assertion, Kagan did indeed publish at least two law review articles, according to Wikipedia: “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” and “Presidential Administration,” the latter earning honors from the American Bar Association.

Also, it’s obvious that Rehnquist has more publications – he had a longer career. The impressive list of publications that Pejman linked to should properly be filtered to a pre-1971 and post-1971 list to be of value in making a comparison between Kagan and Rehnquist based on publication history, as I tried to point out. Of course you could introduce yet another arbitrary weighting of books versus articles vs book reviews, etc and tweak the outcome either way again. As I said, it is arbitrary.

Pejman accuses me of bias but I don’t have any particular pro-Kagan interest, rather a data-centric one. I trust the professionals of law to evaluate their peers, and on that standard, Kagan’s record (tenure at UChicago, then Dean at Harvard, plus being Editor of Harvard’s Law Review) makes me biased in favor of the assumption she is qualified, a-priori. But I think there’s enough data beyond those two points to make sufficient case she is as qualified as anyone else, including Wood or Rehnquist (the latter whom I am not trying to impugn, though Pejman seems to suspect I have a partisan axe to grind here).

Ultimately, the best case for Kagan was made by Lawrence Lessig, in response to Glenn Greenwald‘s leftist critique of her. I guess it boils down to argument by authority. I just dont see an objective data set here. But that’s why Presidents pick Justices, instead of algorithms.

Join the Discussion
comments powered by Disqus