Kagan never served as a judge, never litigated a case before being named solicitor general, never wrote a book or anything else anyone has turned up that manifests real legal scholarship.
Buchanan's accusation doesn't hold up to much scrutiny. Libertarian law professor Eugene Volokh notes on his blog that Kagan "wrote or cowrote four major articles" and three other shorter "but substantial" pieces which he described as "quite good output for eight years as a working scholar."
Volokh goes on to say:
Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw's JLR database) -- an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.
Chevron's Nondelegation Doctrine has been cited 75 times, a very high number for an article's first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace.Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review's excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).
And while some articles might be heavily cited because they fit with academic ideological fashions, I don't think these would qualify. As I understand it, Kagan's administrative law work is consistent with a strong executive model, and the modern intellectual fashion (especially during the Bush era) has been to criticize this model (though the balance of the legal academy on this has not been as lopsided as on some other issues). Likewise, Kagan's First Amendment scholarship, especially Private Speech, Public Purpose, doesn't fit with any current fashion among First Amendment scholars; it is not, for instance, distinctively left-wing in its views (the direction in which the constitutional law academy famously trends these days). That it has been heavily cited suggests a substantive judgment about its technical merit and originality, and not just ideological sympathy.
So, Kagan had a substantial level of output for someone in her position, and that output has been cited by others at an astounding rate. That would seem to be the exact opposite of the charge Buchanan made in his column.
This is the same Pat Buchanan who advised President Nixon to appoint Italian and Irish Americans to the federal judiciary in order to win votes from those ethnic groups. He may not be the best person to go to for advice on what the substantive case is for or against a judicial nominee.
This just in, Fox's Major Garrett is back with the newest "cause for concern" about Elena Kagan from the right:
Did you get that? There's the possibility that Kagan argued the Citizen's United case with a position on the issue already in mind! Now, look, I am not a lawyer, but I have extensive experience in watching actors play lawyers on such programs as Law & Order, Law & Order: SVU and Law & Order: Criminal Intent. I have been known to watch Nancy Grace on very rare occasions, as well as reruns of Perry Mason and Night Court. And as far as I know, lawyers don't often go into court like judges, open to being swayed in one direction or another.
In fact, lawyers are almost always advocates for one position or another (I'm assuming that's why the words are synonyms). This is why the "versus" in court cases isn't in reference to a sports network that shows hockey games, but rather to the adversarial nature of the legal system where each side -- let's call them lawyers -- represents an argument. You could say that lawyers often "prejudge" (to use Garrett's words) in favor of their clients.
In Citizens United v. Federal Election Commission, Kagan was representing the FEC, and as such was an advocate of the government's position. You know, like every Solicitor General before her in the entire history of the country?
That anyone is arguing that this is a "cause for concern" is the real cause for concern.
William Kristol falsely claimed Elena Kagan has "hostility to the U.S. military" because she "tried to bar military recruiters from Harvard Law School." In fact, Kagan has praised the military, military veterans dispute the notion that Kagan is hostile to the military, and Kagan consistently followed the law while allowing students access to recruiters.
The L.A. Times reports:
Murdoch was asked on the company's third quarter analyst call about the departure of advertisers, many of whom have left the show in an organized protest that began last year when Beck said President Obama had a "deep-seated hatred of white people." One wanted to know how long Fox News would "subsidize" the show, which is "filled with house ads."
"It's not subsidizing the show at all," Murdoch fired back, adding that the theatrical Beck gives "a terrific kickoff" to the Fox News evening lineup.
At least 80 advertisers have dropped their ads from Glenn Beck's show since he called President Obama a "racist" with "deep-seated hatred for white people." In November, Murdoch said that Beck's characterization of Obama was "something which perhaps shouldn't have been said about the president, but if you actually assess what he was talking about, he was right."
Ben Smith of Politico reports that Fox News has refused an ad from the progressive group VoteVets urging action on climate change legislation, on the grounds that the ad is "too confusing" according to spokesman for VoteVets.
It's interesting that Fox News is refusing the ads, and apparently using confusion as some sort of justification. For instance, Fox regularly buys print advertising for themselves in newspapers and trade publications, yet I've never heard of a Fox ad being rejected because readers might confuse the network with actual news (they act more like a PAC nowadays). Or perhaps Fox felt VoteVets ads might create some sort of cognitive dissonance for viewers who have become used to the network's shoddy coverage of environmental issues?
Furthermore, what kind of standards does advertising on Fox adhere to when it rejects VoteVets' work, yet has no problem at all running ads for Survival Seeds (your defense against "emerging totalitarianism")?
Operators are standing by.
Fox & Friends hosted Michael Scheuer for two segments to comment on the attempted bombing in Times Square, during which he repeatedly attacked President Obama. Scheuer has a history of inflammatory comments, including his statement that "[t]he only chance we have as a country" is for Osama bin Laden to "detonate a major weapon."
How did you spend your weekend? The folks at Mediaite spent theirs promoting an old, discredited non-scandal about the President. They did it based on a weak story from a tabloid news source, then spent the next few days updating and massaging the story, justifying its release and making it clear that their editorial judgement is essentially whatever Matt Drudge says it is.
For these transgressions, Mediaite is asking the tough questions: "Why Is The National Enquirer Wasting Its Shred Of Credibility On This Obama Story?"
They've got to be kidding. They have to be. Mediaite should be following the adage, "physician, heal thyself," rather than acting as if they've got the moral high ground on the Enquirer here. Mediaite is trying to lecture the Enquirer on how to do journalism, but their recent work is ample evidence they're quickly running out of credibility of their own to shred.
Even after Mediaite retracted its claim that a link to a news story from The Drudge Report gives a story "credibility," it continued to claim that such a link conveys "significance" and makes the linked story worthy of further discussion. But many of the stories promoted by Drudge are entirely fabricated.
Apparently the Washington Examiner didn't want to be left behind in the right-wing race to the bottom in distorting President Obama's appeal to supporters for the 2010 election, so this morning the paper sent out this lovely bit of work:
That's right, the Examiner morphed Obama's comments about turning out "young people, African-Americans, Latinos, and women who powered our victory in 2008" into a "diss" of "white guys." As Simon Maloy and Matt Gertz have pointed out, Obama was simply discussing turning out his base voters - something any politician who has ever won a race knows to do. The mental gymnastics involved in making this leap would easily qualify for the next Olympics, but sadly the Examiner is just following in the footsteps of its conservative comrades-in-arms.
Then again, this is a paper that published a column a year ago explaining that Obama's approval ratings "appear a bit more popular overall than they actually are" because of high support among black voters.
So maybe it's a theme.
Monica Crowley falsely suggested that a motion filed by former Illinois Gov. Rod Blagojevich contradicted what she claimed were Obama's statements that "none of his representatives" were involved with efforts to fill the Senate seat Obama vacated. But Obama never made such a statement; he acknowledged contacts between his staff and Blagojevich's office while stating that his staff "had no involvement" in Blagojevich's alleged efforts to sell the Senate seat.