Harvard's Laurence Tribe: Kagan Performance "Masterful in Every Respect"

Legal scholar Laurence Tribe told Big Think today that he found Elena Kagan’s performance in her Supreme Court confirmation hearings to be "masterful in every respect." Kagan, who was previously the dean of Harvard Law School (where she worked with Tribe), ended her testimony before the Senate yesterday after two long days of questioning. Both Democrats and Republicans agree that she is likely to be confirmed. 


"She demonstrated not only an encyclopedic knowledge and understanding of the law and an impressive feel for the proper role of a Supreme Court Justice but also a remarkable capacity to express even obscure legal concepts in plain English without condescension or oversimplification, and to parry tough questions with grace and good humor," added Tribe, who was recently named Senior Counselor for Access to Justice, a Department of Justice initiative to increase legal access for the poor. "No one in my memory has navigated the confirmation process with as much skill, and my memory of these hearings goes back all the way to the 1970s. She ducked exactly when she should have ducked and had the wisdom not to exploit softballs when doing so could have backfired," he said. 

Kagan was not as forthcoming as one might expect, given her 1995 article bemoaning the "air of vacuity and farce" of past confirmation hearings, but that is to be expected, explained Tribe: "She was as forthcoming as any nominee could properly be—which, of course, isn’t terribly forthcoming. But anything more, I’d stress, would’ve been problematic not only in political terms but as a matter of principle, given the demands of judicial independence and the requirement that a judge maintain as open a mind as one can reasonably expect."

While Kagan didn't divulge her thoughts on crucial issues like executive power, abortion, or the rights of corporations, she did make some things clear. Importantly, she revealed her belief that the Constitution is a living document, one which does not change but which must be applied differently to new situations. Justices Scalia and Thomas, conversely, tend to follow the notion of "original intent." In his Big Think interview in 2008, NYU law professor Kenji Yoshino discussed at length these two approaches to constitutional law. Federal Judge Richard Posner, however, told Big Think that a purely strict interpretation of the Constitution is essentially impossible

Kagan also promised to take a "modest" approach as judge. Her time in other branches of government, she said, has taught her that "the court must also recognize the limits on itself and respect the choices made by the American people." These remarks came amidst repeated arguments from the Democrats that the court has moved decisively to the right under John Roberts, something which Tribe argued in his Big Think interview several years ago. Republican rhetoric in recent years has characterized liberal judges as having "activist" agendas, but Democrats pushed back against this notion, claiming that conservative justices like Roberts and Alito are the true activists. The Supreme Court's decision in this year's Citizens United case reversed decades of legal precedent regarding corporate funding for political campaigns. 

The New York Times endorsed Kagan today as well, saying that "she could act as an important brake on the current Supreme Court’s alarming tendency to bulldoze through decades of settled precedents." But they expressed some pause over her lack of a stated judicial philosophy and over whether her responses reflected true beliefs or merely performance. 

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    Politics & Current Affairs

    Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:

    "I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."

    Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.

    Civil discourse has fallen to an all time low.

    The question that the American populace needs to ask itself now is: how do we fix it?


    Discursive fundamentals need to be taught to preserve free expression

    In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.

    It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.

    Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.

    Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.

    The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.

    It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.

    In their findings the authors state:

    "The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
    upholding First Amendment ideals.

    Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."

    With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.

    Talking politics at Thanksgiving dinner

    As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:

    • Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
    • Traditional Liberals: older, retired, open to compromise, rational, cautious.
    • Passive Liberals: unhappy, insecure, distrustful, disillusioned.
    • Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
    • Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
    • Traditional Conservatives: religious, middle class, patriotic, moralistic.
    • Devoted Conservatives: white, retired, highly engaged, uncompromising,
      Patriotic.

    Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.

    It's interesting to note the authors found that:

    "Tribe membership shows strong reliability in predicting views across different political topics."

    You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.

    Here are some statistics on differing viewpoints according to political party:

    • 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
    • 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
    • 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
    • 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
    • 58% of Democrats say employers should punish employees for offensive Facebook posts.
    • 47% of Republicans favor bans on building new mosques.

    Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement

    Here are some guidelines for civic discourse that might come in handy:

    • Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
    • Practice inclusion and listen to who you're speaking to.
    • Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
    • Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
    • We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
    • If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.

    Civic discourse in the divisive age

    Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.

    There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:

    "In the era of social media and partisan news outlets, America's differences have become
    dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
    the other side can no longer be tolerated, and no price is too high to defeat them.
    These tensions are poisoning personal relationships, consuming our politics and
    putting our democracy in peril.


    Once a country has become tribalized, debates about contested issues from
    immigration and trade to economic management, climate change and national security,
    become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
    Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
    The work of rebuilding our fragmented society needs to start now. It extends from
    re-connecting people across the lines of division in local communities all the way to
    building a renewed sense of national identity: a bigger story of us."

    We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.

    This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.