Posted by: captainfalcon | May 10, 2010

The Politicization of the Law

One line of attack being pressed against Elena Kagan is that she’s an intellectual lightweight. (The strategy is to equate her to Harriet Miers.) The left’s retort – other than to point at their respective pedigrees – is that this line confuses the quantity of a body of work (Kagan hasn’t published much) with its quality.

At Balkinization – a law professors’ blog – Mark Tushnet describes one of Kagan’s articles as “quite spectacularly brilliant.” A Google search of Balkinization turns up “about 127” instances of the word “brilliant.” Sandy Levinson referred to Carl Schmitt, a notable German political theorist from the first half of the twentieth century, as “truly brilliant.” Otherwise (as far as I can tell), people and their scholarship have only been described as “brilliant.”

Unless I’ve missed something, then, Kagan’s piece has been judged more brilliant than any other piece of scholarship Balkinization has ever assessed. The correspondence between Tushnet’s frisson and the left’s official line suggests to me that Tushnet is being hyperbolic in order to further the left’s narrative about Kagan’s aptitude. Whether he’s doing so consciously, or because he unreflectively gravitated towards the left’s line, this is a sign that even those whose job largely consists in dispassionate evaluations of legal scholarship can be co-opted by the noise machine into generating politically expedient distortions.


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