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Jewish World Review May 5, 2010 Kagan Whitewash By Evan Gahr
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?
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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 for 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, G0d 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 least 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 by JewishWorldReview.com 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?
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Comment by clicking here. Mr. Gahr has written for, among others, The Wall Street Journal, The Washington Times and was a former columnist for the New York Post.
© 2010, Evan Gahr. |
Arnold Ahlert | |||||||||||||||||||
