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Obama and Kagan Whisper in the Faculty Lounge

A Commentary By Michael Barone

Thursday, May 13, 2010

Professor chooses professor. That's one headline you could write about Barack Obama's nomination of Elena Kagan to the Supreme Court.

Obama graduated from Harvard Law School in 1991; Kagan in 1986. Kagan joined the faculty at the University of Chicago Law School in 1991 and became a full professor there in 1995. Obama taught constitutional law there, though he was not formally a professor, from 1992 to 2004.

They have other things in common. Unusually for top law students who go on to teach law, they have published little: Kagan has written just five law review articles; Obama none.

Nor, from all the accounts we have, has either of them expressed, even in conversation, opinions on many burning legal issues. That should be just a little embarrassing for those Democrats who expressed disbelief when Clarence Thomas said he had not opined on the rightness of Roe v. Wade.

Both Obama and Kagan also earned the reputation of being respectful of the views even of conservatives. Candidate Obama had the gift of fairly stating others' positions in ways that moved them to think he actually agreed with them. As dean of the Harvard Law School, Kagan hired conservative scholars and gave welcoming speeches to the conservative Federalist Society.

Reporters have unearthed some of their writings in college that sound sophomorically left-wing -- but, hey, they were sophomores then, and you won't find many such utterances later in their careers. Obama's autobiographies carefully avoid statements that might have proved politically toxic later.

This stealth strategy has certainly paid off: Obama is president, and Kagan is solicitor general and looks like a cinch to be confirmed for the Supreme Court.

But behind their careful avoidance of incendiary issue positions one can find evidence that both the appointer and the appointee share the standpoint of the professor. They bring to public service attitudes that are commonplace in the faculty lounge but not nearly so common in the rest of America.

Consider Obama's constant calls for civility -- starting with his 2004 Democratic National Convention speech -- and his harsh characterizations of those who oppose him on issues. The candidate who talked of his eagerness to listen to others, "especially when we disagree," is the president who in a commencement speech laments that through blogs, cable TV and talk radio, "even some of the craziest claims can quickly gain traction. I've had some experience in that regard." Obama fans have taken to calling disagreement "sedition."

To critics, this sounds like a contradiction: the man urging civility engaging in incivility himself. But to the professorial mind, the contradiction may be invisible. University campuses, far from being open-minded forums of opinion, are the most closed-minded parts of our society, with speech codes and something resembling re-education classes for those who violate them.

University administrators seem to believe they have a moral obligation to suppress speech that displeases or offends them. Obama -- the self-proclaimed paragon of civility -- seems, like most professors, to regard Rush Limbaugh and Fox News as outside the bounds of legitimacy.

The one issue on which Kagan has voiced strong opinions is the ban on open gays in the military -- a stand pretty much universally held on campuses, but on which the nation beyond is divided. In barring military recruiters from Harvard Law School, she condemned "the military's discriminatory recruitment policy," "the military's discriminatory employment policy" and "the military's policy."

But it is not the military's policy. It's the law of the land, mandated by a bill passed by a Democratic Congress and signed by Bill Clinton, in whose White House Kagan was nonetheless willing to serve.

As dean at Harvard Law, Kagan signed a brief that sought to overturn the law denying federal funds to universities that barred military recruiters. Yet that brief, written by one of the ablest Supreme Court advocates, Walter Dellinger, was nonetheless rejected by the justices by a vote of 8 to 0.

In nominating Kagan, Obama said he wanted a justice who understood "the real world." But it seems that he nominated someone who, on one important occasion, utterly misjudged the real world beyond the campus.

Of course, one might say the same of Obama himself, who has pushed big government policies that seem like no-brainers to most professors but have aroused passionate and principled opposition from the public at large. We are seeing what government by the faculty lounge looks like.

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