Monday, May 10, 2010

Obligatory Elena Kagan Post

Hello, neglected blog. My excuse this time: a weekend long Liberty Fund conference (and a few evenings spent frantically reading in preparation.) It was good. There were plenty of desserts and nice wine. Interesting people. Also, I did not say anything about civil rights law that made anyone cry, which was good.

So: Elena Kagan was nominated to SCOTUS. My gut feeling: probably the least bad of the available candidates out there. It's true that I confess some weakness for Leah Ward Sears, who a)had one of the more moderate records and b)also went to the same law school that I did.

Some scattered thoughts:

1)Populist critiques(or, if you like, anti-elitist) critiques of the current court are a little silly. First, the court is just so tiny; it's easy to read far too much into random fluctuations regarding the represented justices' alma maters. It's perhaps noteworthy that Diane Wood, who came within a hair breadth's of the nomination, went to Texas -- an excellent but still near universally lower ranked school. Also, many of the plausible nominees will have led remarkably similar upper middle class lives in the years immediately following their nominations. Why continue to harp on education so?

2)I agree with my Pnin, as I said over a nice salmon dinner tonight, that Kagan probably made the wrong call regarding the ban of military recruiters on the Harvard campus. I do find the issue a bit more complicated, though, even for more or less libertarian/conservative reasons. If institutions like Harvard don't take it upon themselves to enforce certain anti-discrimination norms, calls for expanded anti-discrimination laws inevitably ensue. Libertarians like to say that civil society institutions can play an important role in constraining discrimination, which... sometimes means letting civil society institutions play important roles in constraining discrimination.

This issue also throws into relief the tension between two conflicting conservative visions for the academy. Adherents of one vision want universities to look like little classical liberal states. They ought to be agnostic on all different visions of what constitutes a good life. To the extent possible, universities ought to give equal time to all different perspectives -- in terms of hiring faculty of different views, in terms of making sure that different perspectives are introduced in the typical class, and in terms of making sure that the university regulates student speech and conduct with the lightest hand possible. The Foundation for Individual Rights has forcefully and eloquently articulated this perspective.

Adherents of the other vision are more comfortable letting universities vigorously articulate and enforce codes of values. See, e.g., Noah Millman or David Brooks. In fact, they often wish that universities would do more to differentiate themselves from one another. Some of these people are therefore forcefully in favor of the creation of alternative conservative and libertarian institutions of higher education -- they're thus great champions of schools like Hillsdale or Grove City. Others might not go as far. They're fine with the Harvards and Yales of the world vigorously articulating a center-left (OK, not-so-center left?) vision of the good life, so long as they're honest that that's what they are doing. So these institutions would literally follow the (tongue in cheek) recommendation in this thread that the Harvards of the world ought to just make a list of all the things that can be thought and said there. The real problem is that these institutions pretend to be morally agnostic miniature classical liberal states when they are in fact no such thing.

I don't know which vision I find more attractive. I'm usually more sympathetic on national policy questions with people in the first camp; they're usually more libertarian, whereas members of the second camp tip a bit more socially conservative. On the other hand, the second vision is more easily achieved. Adherents of the first vision sometimes also do silly things like call for criminal trial levels of due process in private university expulsion proceedings. This might be nice, but tailoring the scope of due process to the scope of the potential deprivation to the defendant is also a not crazy idea. Figuring out how to allocate "equal time" to different ideas is also a thorny problem, and I haven't yet found a satisfying answer to it.

In any case, if Kagan moved the ball closer toward Harvard's becoming an institution along the lines of #2, I am not entirely convinced that that is bad or blameworthy. Our shrieking about such decisions -- even if wrong-headed -- also undermines good faith efforts toward moving toward the second vision and should thus be avoided.

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