President Obama has nominated Elena Kagan for Justice of the United States Supreme Court on the basis of an academic publication record which might give her a fighting chance for tenure at a first rate correspondence law school in the Texas Panhandle.
A review of her published scholarship after almost two decades in and out of academia turns up four law review articles, two brief pieces and several book reviews and in memoriam. There is nothing even remotely resembling a major legal text or research publication.
Her lack-luster academic publication record is only surpassed by her total lack of any practical experience as a judge: zero years in adjudication, unless one accepts the line of her exuberant advocates, who point to Kagan’s superb ability in adjudicating among the squabbling faculty at Harvard Law School when she served as Dean. No doubt Kagan had been very busy as the greatest fundraising Law School Dean in Harvard’s history ($400 million), which may account for the fact that she never found time to write a single academic article during her nine year tenure (2001-2009).
On Monday, November 30th the Supreme Court overturned a Second Circuit Court of Appeals order to release photographs of U.S. soldier abuse of prisoners in Afghanistan and Iraq. According to a statement by Solicitor General Elena Kagan, disclosing these photographs “would pose a clear and grave risk of inciting violence and riots against American troops and coalition forces.”
The contestation over the release of these photographs began four years ago, when a trials court judge claimed that the Bush administration was evading obligations imposed on it by the Freedom of Information Act in withholding the images. Although earlier this year the Obama administration argued in favor of releasing the photographs in an effort to encourage ‘transparency’, the decision was later reversed. While the Supreme Court has historically challenged the state’s assertions in cases concerning the rights of detainees, this time they sided with the Obama Administration, permitting the Pentagon to block the release of these photographs and others like them.
Are we to believe that concern for the safety of U.S. soldiers and civilians lies at the heart of this decision, or can we sense a certain disingenuity when we think about how the state endangers both soldiers and civilians everyday by subjecting them to war? Insincerity, as George Orwell tells us, is “the gap between one’s real and declared aims.”
What is it about the nature of the image in general and, more specifically, about the ‘possible’ content of these images in particular that is creating a palpable gap between the state and judiciary’s real and declared aims?