But is she?
True, Kagan, a former Harvard Law School dean, would be the first person without judicial experience appointed to the Supreme Court since William Rehnquist in 1972, doesn’t have much of a paper trail.
Her views on most of the hot button issues she would likely decide on the Supreme Court--race relations, abortion and federalism, are mostly impossible to discern.
But Kagan does have an identifiable, though overlooked, track record on one matter and it’s a telling one. As Dean of Harvard Law School in 2004 and 2005 she treated two liberal law professors with kid gloves when they were busted for plagiarism. Her chicanery was so blatant that even a leftist academic said she should be fired for her “whitewash.”
Kagan’s essential absolution of both professors has been virtually unnoticed in the flood of stories about her possible Supreme Court nomination this year and in 2009 when she was considered a top candidate to replace liberal Justice David Souter.
But the way she handled professors Larry Tribe and Charles Ogletree, when they both were caught swiping the words of others, seems to violate basic principles of fairness.
She let the professors off easy for the kind of offense that for which any Harvard undergraduate or law school would have been suspended if not expelled.
As the Harvard Crimson wrote after Kagan and Harvard president Larry Summers declined to punish Tribe, “the glaring double standard set by Harvard stands as an inadequate precedent for future disappointments.”
It also could say a lot about Kagan would behave on the bench. Through inaction and disingenuous statements that disregarded Harvard’s own disciplinary policy Kagan exonerated Tribe and Ogletree of any malfeasance.
In other words, like a good liberal activist judge, she ignored precedent and the plain meaning of relevant texts to create an outcome that struck her fancy.
The copycat cases came to light in the Fall of 2004. Ogletree was busted first for his book, part history part personal memoir, All Deliberate Speed.
Following a Harvard investigation ordered by Kagan when she received an unsigned letter claiming that Ogletree’s book had ripped off a collection of essays about Brown Ogletree issued a September 3 statement on the school website.
The professor, who taught both Michelle Obama and Barack Obama at Harvard Law School, said that his book contained six paragraphs, almost word for word, from the essay collection, What Brown v. Board of Education Should Have Said. The 2001 book was edited by Yale Law School professor Jack Balkin.
Ogletree, who gained prominence when he served as Anita Hill’s lawyer during the Clarence Thomas confirmation battle, said he took “complete responsibility” for the errors. Then he blamed it on his research assistants.
He said one assistant put quotation marks around Balkin’s words so the other assistant could summarize it with “proper attribution to Balkin.” But the second assistant mistakenly removed the quotes and and sent a book draft to the publisher.
So much for contrition what about the punishment?
Ogletree told the Boston Globe that he would face disciplinary action but neither he nor Kagan’s spokeswoman would specify it.
Kagan said in a statement that Olgetree was guilty of “a serious scholarly transgression.”
But Ogletree was not suspended, which is the minimum that undergraduates and graduates face when they are busted for plagiarism. How seriously then did Kagan really treat this transgression?
Certainly, the statement Ogletree issued, which was “approved” by Harvard according to the Boston Globe, relied on an excuse, unintentional copying, that Harvard Law School’s student handbook explicitly says is not exculpatory. “Students who submit work that is not their own, without clear attribution of all sources, even if the omission is inadvertent will be subject to disciplinary action.”
As the controversy festered, Harvard Law School professor Larry Tribe, a party line liberal, came to Ogletree’s defense. Tribe told the Boston Globe that Ogletree is someone who “because he often says yes to them many people all over the country who ask for help on all kinds of things, he has extended himself even farther than someone with all the energy can safely do.”
Tribe vouching Ogletree’s character quickly sounded like Eliot Spitzer vouching for your monogamy.
A law professor who read about Tribe’s defense tipped off The Weekly Standard that Tribe’s 1985 book, God Save This Honourable Court, had purloined quite a bit from University of Virgina emeritus professor Henry Abraham’s acclaimed 1974 book, Justice and Presidents.
In a humongous article posted on the magazine’s website September 24 Joseph Bottum documented multiple passages from Tribe’s book, the bible for liberals who Borked Robert Bork in 1987 when he was nominated for the Supreme Court in 1987, that were clearly lifted from Abraham’s.
One phrase was taken verbatim. “Taft publicly pronounced Pitney to be a ‘weak member’ of the court.”
Many others were virtually identical. Consider Bottum’s many examples. Abraham: “Caleb Cushing was unquestionably highly qualified and possessed of a superb mind."’ Tribe: "Cushing was possessed of a fine mind and undoubtedly highly qualified."
And that was the lest of it, Bottum, now editor of First Things, noted that “The historical sections of the book typically consist of a long passage from Abraham crunched down by rephrasing and the elimination of detail -- as one might expect when Abraham’s 298 pages of material are made to provide the facts around which Tribe builds his own thesis in [only] 143 pages of text."
Tribe quickly issued a non-apology apology. Just like Ogletree he accepted full responsibility for the plagiarism--and then proceeded to say it was all a harmless error.
Tribe contended that his “well meaning effort to write a Book accessible to a lay audience through the omission of any footnotes or endnotes in contrast to the practices I have always followed in my scholarly writing came at an unacceptable cost: my failure to attribute some of the material the Weekly Standard attributed.”
Why just some? He didn’t identify what the Standard supposedly got wrong.
And what was Kagan’s reaction to Tribe’s mea not so culpable? She refused any comment to the Boston Globe and appointed a three person panel to investigate the matter.
In other words, she stonewalled. Why did she need to investigate what Tribe had already admitted? Tribe didn’t challenge any facts in the Weekly Standard opus.
A mere seven months later the panel presented its report to Kagan and then Harvard president Larry Summers.
What did they find? Nobody knows. The report was not released and former Harvard president Derek Bok, one the authors, refused to discuss it when reached at home last week.
The only “punishment” Tribe got was a statement by Kagan and Summers that cleared him of any malfeasance.
“The unattributed materials relates more to matters of phrasing than to fundamental ideas,” they said, offering a distinction that would have been irrelevant to Harvard if a student had done the same thing. “We are also firmly convinced that the error was the product of inadvertence rather than intentionality."
“Nevertheless, we regard the error in question as a significant lapse in proper academic practice.”
A lapse? That’s like saying someone who bounces check didn’t swindle anyone the bum checks were just a lapse in accounting procedures. Or the shoplifter had a lapse in memory when he left the store without paying.
And again, just like Kagan’s statement on Ogletree, if the lapse was so “significant” why wasn’t Tribe sanctioned?
In a lengthy article for his blog, Massachusetts School of Law Dean Lawrence Velvel said Kagan and Summers should have been axed for their “whitewash.”
He cited example after example of how Kagan and Tribe essentially offered excuses for the very actions they purported to condemn.
For example, Summers and Kagan said that they had “taken note that the relevant conduct took place two decades ago.”
Why take note? Velvel asked. “Do we forgive criminals because their crimes were committed 20 years ago, but they managed to hide them for two decades?)
Well, maybe Velvel is just a conservative ideologue determined to bludgeon liberals with any rhetorical weapon available?
Uh, not exactly. In September 2008, Velvel held a conference to plan the prosecution of Bush Administration officials for “war crimes.”
In his analysis of the Kagan-Summers statement Velvel, who could not be reached for comment, was also subtle. “What can one say of this travesty? “ he asked. “Only, I suppose, that it is a travesty. Its language is misleading, its logic miserable, and its spirit corrupt. “
Corrupt, indeed. Law school students, however, caught with purloined words just like Tribe and Ogletree don’t have it so easy.
The current Harvard Law School handbook describes three cases of plagiarism by students in “recent years.” One student was suspended. The other was suspended and not allowed back to complete his studies.
The third student had already graduated when his plagiarism was discovered. His degree was rescinded.
Maybe they can get jobs as research assistants for Ogletree or Tribe.
As for Kagan and her possible new job, given how little integrity she displayed at Harvard is there any reason to think she’ll have any at the Supreme Court?
--Evan Gahr has written about law for many conservative publications.