Solicitor General Kagan’s Confirmation Hearing
June 23, 2010
Questions and Answers:
Let me begin by thanking the Federalist Society for inviting me to participate in this debate, with such a distinguished group.
Turning to the subject at hand, I strongly suspect that the Kagan confirmation process will prove anti-climactic. We can reasonably claim to know the answers to most of the main questions about what will occur. Kagan will be confirmed. Senate Democrats will vote for her confirmation, probably without exception. Most Senate Republicans will vote against it, probably by a wide margin.
These votes will be the "correct" ones under the currently prevailing standard for voting up or down in these matters. Democratic Senators correctly believe that Kagan will decide most controversial cases as they would wish her to. Republican Senators correctly believe that she will not. During the past two or three confirmation processes involving the Supreme Court, these sorts of beliefs have driven the vote. That may not be the best approach, but the important thing is that there be one consistently applied standard for the up or down vote. Otherwise, one party (and one ideology) would likely obtain an unfair advantage in the process.
Finally, Kagan will not be filibustered. The Republicans don't have the votes to do it. And, barring unexpected developments, she probably should not be filibustered under the prevailing standard for filibustering a judicial nominee, which I take to be the "exceptional circumstances standard" articulated by the "Gang of 14."
The two most interesting questions during the Kagan hearings may turn out to be these: (1) what kind of impression will Kagan make with the portion of the public that pays attention to the hearings and (2) to what extent will she follow Sonia Sotomayor's example and articulate a traditional, reasonably conservative vision of judging. The two questions are related, it seems to me. As Sotomayor and those who helped her prepare appreciated, a nominee makes a better impression if she articulates a concept of judging that is consistent with the traditional "umpiring" model.
Kagan may stray further from that model than Sotomayor did. She is, after all, an academic, not a judge. Thus, the left-wing critique of the traditional judging model comes more naturally to her. Sotomayor had dabbled in that critique when, on several academic-type occasions, she employed the concept of the "wise Latina judge." The force of the reaction against that construct caused her effectively to disavow it, and to cling to language about judging that must have sat well with every Republican Senator who thought she was sincere (few did).
Kagan, as I suggested, may be a bit more adventuresome. But with this so much at stake, probably not much more.
I agree with Professor Winkler's view that the nomination of Elena Kagan is far from politically optimal for President Obama. Kagan lacks the credentials the public expects to see in a Supreme Court nominee. Thus, unless she performs exceptionally well at her hearing, her nomination well be viewed as another example of President Obama underperforming. One more instance is not a big deal in the political scheme of things, but it may help feed the current adverse narrative.
I also agree that judicial experience should not be mandatory for a Supreme Court appointment. However, the examples Professor Winkler cites -- William Rehnquist, Earl Warren, and Louis Brandeis -- don't advance the case for Elana Kagan very much (nor do I understand Professor Winkler necessarily to be citing them for that purpose). Rehnquist had years of experience in the private practice of law. Warren had been a highly successful district attorney, as well as Attorney General and then Governor of California.
Brandeis also practiced law, gaining fame for doing so. And, although not an academic, his legal scholarship was trailblazing. By contrast, I understand that Kagan's work is considered cautious and generally unexceptional.
Thus, I think it is for good reason that, as Professor Winkler concludes, "even if Kagan gets through and turns out to be a terrific Justice, the President will have lost some of the confidence of the electorate that is so precious to him now."
I opened this debate by predicting that, during her confirmation hearing, Elena Kagan would more or less "follow Sonia Sotomayor's example and articulate a traditional, reasonably conservative vision" of the Supreme Court's role. In her opening statement today, Kagan followed that example more rather than less. As with Sotomayor's articulated vision, Kagan's could have come from the lips of John Roberts. Indeed, it could have come from a standard issue high school civics textbook of yesteryear.
Kagan must have been tempted to bring along a sign saying, "I spent two decades in the upper reaches of legal academia to say this?"
There is little indication that the Committee members were buying it. Nor should they. It's certainly not the approach employed by Kagan's judicial heroes, Thurgood Marshall and Israeli Supreme Court Justice Aharon Barak. The latter jurist, described by Kagan as the "judge who has best advanced democracy, human rights, the rule of law, and justice," is famous for his unabashed efforts to "expand" Israel's basic laws, which he equates with a constitution. In the words of Judge Richard Posner, Barak "created out of whole cloth  a degree of judicial power undreamed of even by our most aggressive Supreme Court justices."
There is every reason to believe that, if confirmed, Kagan will, in fact, become one of our very most aggressive justices.
But Kagan's opening statement is useful for one purpose, if only an academic one: it reminds us that the "judicial mainstream" is located about where John Roberts and Samuel Alito stand. Otherwise, Sonia Sotomayor and Elena Kagan would not need to sound so much like them when they seek approval from the nation's elected representatives.
Will Kagan really become, as Paul Mirengoff suggests, "one of our very most aggressive justices"? I doubt it and suspect she's likely to disappoint those on the left searching for a bold, activist justice in the mold of William Brennan. She's a progressive, but will likely turn out to be more like Felix Frankfurter than William Brennan.
Like Frankfurter, another Harvard Law professor, Kagan's thoughts about judicial review are likely shaped by the experience of living under what progressives view as an activist court led by conservatives. Frankfurter, one of the founders of the ACLU, recognized that the appropriate role of the Court is to be restrained and more or less deferential to the elected branches. This was the dominant progressive view of the Supreme Court in academia in the 1930s and Frankfurter brought it with him to the Court. When activist liberals like Hugo Black came to dominate the Court in the 1940s, Frankfurter couldn't bring himself to go along with many of their rulings. He understood that restraint was something both liberals and conservatives should follow.
Today, the most influential progressive understanding of judicial review also emphasizes judicial restraint, usually under the terms of "minimalism." Many academic progressives have realized that the assertiveness of the Warren Court set back liberal causes in many ways -- most importantly, by stimulating a serious backlash that led to the rise of a strong conservative legal movement and contributed to the election of Nixon, Reagan, and the Bushes. Kagan, who has exemplified cautious moderation in her writings and elsewhere in her career, almost certainly realizes this. For the long run health of progressive ideals, it's essential that she not be "one of our very most aggressive justices."
Her remarks about Barak shouldn't be taken to suggest otherwise. She was a dean introducing him at an event. He was an honored guest and, as any law professor will tell you, deans gush at these things. That's part of their job. She also gushed about Scalia when he visited Harvard. In fact, her gushing shows that she understood her proper role as a dean. She'll likely bring an understanding of her proper role as a judge to the Supreme Court too.
Following up on Paul's observation from yesterday's opening remarks, Elena Kagan has gone even further today to distance herself from President Obama's articulated judicial standards and even progressivism in general. Amazingly, she claimed not even to know what legal progressivism is, let alone to espouse it. When Senator Kyl questioned her about Obama's "empathy standard" for judging and Obama's analogy to a marathon, in which law gets you 25 of the 26 miles and empathy the final mile, she stated that instead "it's law all the way down." I'm not surprised that she didn't follow Justice Sotomayor in word-for-word adopting Chief Justice Roberts' umpire standard, but she may as well have. She repeatedly said she agreed with his position, including when she abandoned another of the President advocating that judges find in favor of the "little guy." She took a page out of Roberts' sports-analogy playbook and said the law should provide a level playing field for all parties. She even rejected an affirmative-action style formulation of allowing the court to level the playing field itself by handicapping the disadvantaged side. No, she said, it should just provide a level playing field and not interfere.
But aside from trying to position herself as having a judicial philosophy indistinguishable from conservative nominees, Kagan has provided few hints as to how she would decide cases. Let's hope the afternoon gives us a few more answers to questions about what Kagan really believes. Even when Democratic Senator Kohl, already frustrated by finding her record completely inscrutable, boiled it down to a multiple-choice question, Kagan demurred. Would she decide cases more like Justice Scalia or Justice Souter? She said it wasn't so much of an either-or. But obviously there is a wide gap between how each of them would approach the law, as evidenced by Souter's recent speech at Harvard in which he painted the Constitution as a jumble of contradictory principles and values. While Scalia recognizes the difficulty of many issues in constitutional law, I doubt he views the Constitution as inherently self-contradictory.
Would she be a Frankfurter? A Brennan? In one sense it almost won't matter. The current Court has four liberals who are all equally "left," but practically speaking most close cases find all four of them on one side together, so if, say, Breyer is less liberal than Ginsburg, it doesn't affect the outcome of cases. And I think there's no question Kagan would join President Obama's other nominee to vote in lock-step with the other liberals on the bench.
Adam Winkler doubts my claim that Elena Kagan is likely to become "one of our very most aggressive justices." But several considerations support that view.
First, President Obama and his advisers, some of whom know Kagan and have studied her extensively, presumably believe Kagan will decide cases in ways consistent with the president's desire to transform America, and in accordance with his "empathy" and solicitude for the "voices of ordinary Americans" standards. As Professor Winkler has pointed out, Kagan was far from Obama's optimal choice from a political standpoint. Obama would not knowingly have used up political capital to select a modern-day Felix Frankfurter.
Second, Kagan's judicial heroes include Thurgood Marshall. He was no Frankfurter, but rather a reliable "activist liberal" (to borrow Professor Winkler's phrase).
The ultra-activist Aharon Barak is also Kagan's hero. Professor Winkler dismisses her praise of Barak as standard gushing. He notes that Kagan also gushed over Justice Scalia. But Kagan did not call Scalia her hero. Rather, she jokingly chided Scalia, asking why he supports a dead - as opposed to a living - Constitution.
Third, Kagan's selection of heroes is consistent with what we know about her politics. Her college thesis bemoans the demise of the American Socialist movement. Her memos as a clerk to Justice Marshall and as a high level Clinton staffer, while revealing a pragmatic streak when it comes to means, demonstrate that the ends she desires are quite "progressive." As a Supreme Court justice she will be much less constrained than before in effectuating her ends in cases before the Court.
Professor Winkler says, however, that many academic progressives consider the Warren court's approach unwise because it stimulated a backlash that ultimately helped conservatives. He speculates that Kagan may be one of these "progressives." If so, the pragmatic streak apparent in some of her memos might cause her to be restrained, rather than aggressive.
It turns out that Kagan considered this conundrum in her Oxford thesis. She argued that the Supreme Court's development of the exclusionary rule during the Warren years was not based on a "coherent theory" and thus "assured the rule's eventual demise" (which still has not occurred) But Kagan did not reject the activism behind the imposition of the exclusionary rule, only the Court's failure to explain it well. In fact, she defended the right of judges to "mold and steer the law in order to promote certain ethical values and achieve certain social ends," provided they can ground their ruling in an acceptable source.
In effect, Kagan argued for striking a balance between text and social justice, using the former to find a range of plausible outcomes and the latter to select among them. This, I believe would be her approach on the Court.
To me, it's an aggressive, borderline lawless, one. And given my sense that her views on social justice are quite liberal, I expect that Kagan will, indeed, be one of our most aggressive justices.
As the hearings on Solicitor General Kagan's nomination wind down, my sense is that, while we can say that they were an improvement over the Alito hearings in that Democratic Senators did not so insult the nominee as to cause her loved ones in the hearing room to cry, and also that at least some of the questions and answers had more substance than did most of what went on during the Sotomayor hearings, these hearings -- and the nominee's answers -- have pretty much been precisely what the nominee complained about in her 1995 law-review article: They have revealed little, if anything, that those of us who follow these matters with any care didn't already know (we already knew, for example, that she is intelligent, amiable, charming, and witty). Also, they have proceeded in accord, I believe, with the Administration's and the Democratic Senators' twin purposes of (a) attacking unfairly the work of the Roberts and Rehnquist Courts while simultaneously (b) presenting the nominee to the public as a judge more like Chief Justice Roberts in approach than, I am confident, she will be.
A few, more particular thoughts:
First, I agree with Paul that Kagan will be confirmed, and will not be filibustered. This is because the President "has the votes" and also because the hearings have probably revealed nothing so surprising (we knew, for example, that she had worked as a political operative in the White House) as to take this nomination outside of the reach of the "elections have consequences, and so a liberal-leaning President is going to get liberal-leaning Supreme Court justices" rule. That said, given all the (unfortunate) contemporary givens, Kagan should (out of respect for Justice Alito, and to avoid creating a false impression for the public that Kagan is more "mainstream" than Alito) receive 30-plus "no" votes from Republican senators.
Second, two possible highlights of the hearings for me have been (a) Kagan's (admirable) statement that Miguel Estrada (who was treated disgracefully by the Senate Democrats) should have been confirmed and (b) her embrace of what John Roberts actually meant when he invoked an "umpire" to describe the work and role of a judge. Like Roberts, Kagan says that she appreciates that a judge should be like an umpire in the sense that, just as no one should think the game is about the umpire, no one should think the law or the case is about the judge. Roberts didn't mean -- his critics' snarking notwithstanding -- that judging is easy or "robotic."
Third, the question that would have been (there's still time!) most educational for the public would have been something like this: "You have embraced modesty, deference, and restraint. But, no judge defers *all* of the time. So, which criteria will you employ when deciding whether to allow, or overrule, the actions of the political branches?"
One of candidate Obama's signature promises was that he would restore science to its rightful place. This was an attack on the Bush administration for allegedly manipulating science to serve conservative causes.
Those who heard this pledge assumed Obama meant that science would not be manipulated for political purposes, not that science would simply switch sides and become the hand-maiden of worthy "progressive" causes.
Unfortunately, Elena Kagan, Obama's latest Supreme Court nominee, appears to hold just such a view of science's rightful place. Documents released by the Clinton White House show that, during her time as a top-level Clinton adviser, she collaborated in spinning an important scientific report in a more pro-partial-birth abortion direction.
The report was issued by a "select panel" of the American College of Obstetricians and Gynecologists (ACOG). It included a statement the Supreme Court found highly persuasive in striking down Nebraska's partial-birth abortion ban -- that the partial-birth-abortion procedure "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman."
But the original ACOG report didn't say that. It stated only that the panel "could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman."
Calling the draft report a "disaster," Kagan wrote the additional language quoted above. With the help of an ACOG political representative, Kagan's language was inserted into the final report.
A district court judge who relied on ACOG's report specifically noted the absence of political influence or involvement in its conclusions. And the Supreme Court would find the ACOG report persuasive when it struck down Nebraska's ban on partial birth abortion.
The federal courts were thus victimized by a deception and a perversion of both the scientific process and the judicial process, caused by Elena Kagan.
When Senator Hatch asked Kagan about these events, she admitted writing the language but claimed she was merely trying to "clarify" or remind ACOG of what that group really thought -- as if the doctors didn't know, or somehow couldn't express, their real thoughts.
As my Power Line blog partner John Hinderaker puts it: "It stands unrebutted that Kagan drafted pro-partial-birth abortion language and sent it to an ACOG political operative, with the result that Kagan's language was included in the final version of the panel's report, even though Kagan is not an obstetrician or gynecologist, and has no expertise in any relevant field. Rather, Kagan was acting as a political representative of the Clinton administration."
Part of Kagan's appeal to Obama is said to be her political savvy which, it is hoped, may enable her to win over Justice Kennedy in certain important cases. Kagan is, in fact, quite the left-wing political operative. Whether that will play well on the Supreme Court is another question. So is the matter of whether, in light of what the ACOG incident tells us, she should serve on that Court.
I may be the only person in America who thinks the confirmation process isn't broken. Once again we've gone through confirmation hearings over a Supreme Court nominee and we didn't hear the two things most people seem to want. We didn't receive an edifying and full-bodied discussion of Elena Kagan's judicial philosophy and we never found out how she would judge the most important issues likely to come before her. I, for one, am happy about it.
The first thing I wonder when I hear people complaining about the lack of substantive discussion over a nominee's judicial philosophy is, "What planet are you from?" I say that in jest, but how can anyone familiar with our political process really believe Senators will engage in a substantive discussion of judicial philosophy or methods of constitutional interpretation in these televised hearings? Any such discussion would almost certainly be filled with the same platitudes and clichés our elected officials usually give us, diminishing rather than enhancing our understanding of how to interpret the Constitution. Some of these Senators can't even ask an intelligent follow-up question, much less engage in the intellectual give-and-take about how to approach, say, the Due Process Clause.
It's also a good thing we never find out what many of us truly want to know: how the nominee will rule on (or "approach") particular issues. First, such discussions probably go against the Framer's vision; they were the ones who wanted to eliminate advisory opinions. Second, if nominees revealed their views in such detail, the only ones who would be confirmed would be those whose likely votes match up with the desired outcomes of 60 Senators. Those Senators do not come to their positions by doing what Justices are supposed to do: consider the law, the facts, the arguments of counsel. They come to their positions, at least in part, out of reelection concerns, which have no place in constitutional adjudication. Moreover, we want the Supreme Court to be a check on Congress, which is more likely if the Justices confirmed do not simply have views that match up with those of the Senators.
The politicization of the confirmation process also has a salutary effect. Because nominees' records are so closely examined, we won't get too many radical or way-outside-the-mainstream Justices. As a result, the Court's jurisprudence is less likely to stray too far afield, left or right. That's why when Senator Sessions bemoaned that he didn't know whether Kagan would vote like Chief Justice Roberts or Justice Ginsburg, I smiled. That's the way it should be.
Adam is right, I think, to remind us that some of the criticisms directed at the confirmation process reflect unrealistic (or even misguided) expectations. That is, while it might be nice if the Senate were structured and staffed in such a way that the hearings really could educate the public about the Constitution and the Court, it isn't, and so we probably should not be too surprised that they don't. This gloomy observation prompts -- for me, anyway -- a perhaps-unsettling question: What does it mean -- what can it mean, today -- for the Senate to provide its "advice and consent", and are hearings necessary -- are they even helpful -- for this purpose? If, at the end of the day, the Senate's role in the process is now simply to serve as an (in effect) supermajoritarian filter through which the nominees of a probably-not-elected-by-a-supermajority President's nominees must pass, then it is hard to see the public hearings' point. They seem primarily to put nominees in the awkward position of saying things publicly (and under oath) that they probably don't really believe, and of characterizing and explaining past writings and statements in highly implausible ways.
On the other hand, I disagree with Adam's suggestion that we don't know how Justice Kagan will "judge the most important issues likely to come before her." True, she did not necessarily tell the Senators how she would vote in such cases, but that doesn't mean we don't have -- based on her record and writings -- a pretty good idea. Certainly (Senator Sessions' expressed frustrations notwithstanding), we know that she will in high profile, ideologically charged cases vote more like Justice Ginsburg than Chief Justice Roberts. (Of course, she will also probably vote with the Chief about three-quarters of the time, but that is because -- contrary to the image of the Court created by the press -- most of the Court's decisions are not hot-button 5-4 rulings about race, abortion, or capital punishment.)
It seems clear that President Obama's election has not worked the kind of transformation, or makeover, of our politics that some of his supporters hoped for. It is already just as clear, though, that the effect of his election (and of the election of a wide Democratic majority in the Senate) on the Supreme Court will be a key feature of his legacy. He will almost certainly nominate three Justices to the Court in his first term and, in so doing, will guarantee that any future Republican president will be in the position of "playing defense" with his or her own nominees. And, this means that -- among other things -- the Court's tragic error in Roe v. Wade will not soon be corrected by the Justices. Elections have consequences.
Perhaps the most interesting thing about the Kagan hearings is how little interest they seem to have provoked. My impression is that these hearings were covered and followed appreciably less intensely than the last three.
If so, this is not because there was nothing to cover or follow. Kagan's stance on military recruiting at Harvard involved the intersection of law, homosexuality, and the military (national security, some would say). And her behind the scenes re-write of what purported to be a pristine scientific document surely would have passed for a mini-scandal had it been executed by a non-liberal nominee.
I'm not sure how to explain what I take to be the lack of interest. Perhaps after three of these events in six years, involving nominees by presidents from both parties, whatever excitement was thought to attach to confirmation hearings has disappeared.
The other thing I found interesting was the degree to which Democrats used the hearings to attack the "Roberts Court." I don't recall either party going this much on the offensive in this respect during the last three sets of hearings.
What explains this development? My view is that liberal Democratic politicians (and members of their base) think they lost the argument during the last three confirmation battles. John Roberts and Samuel Alito "played" well, and Sonia Sotomayor sounded like a conservative. The resulting frustration probably induced the Democrats to be more aggressive in general and, in particular, to try to discredit Roberts and Alito by claiming they are not the jurists they appeared to be when they made such a good impression on the public.
I'm pretty sure the strategy didn't work. First, as I said, these hearings seem not to have attracted much attention. Second, Senate Democrats are unpopular right now, so their attacks on members of a more popular institution are not likely to resonate. Third, those who watched until the bitter end saw Ed Whelan, Robert Alt and others persuasively counter the alleged examples of "judicial activism" by the Roberts Court relied upon by the Democrats -- e.g., the Ledbetter case, which the Democrats continue grossly to mischaracterize.
There's a chance that the Democrats' latest partisan innovation will come back to haunt them. Justice Sotomayor and soon-to-be Justice Kagan are on record having articulated a traditional, fairly minimalist view of the role of judges. If a liberal majority were to emerge -- or even if the liberals prevail in a few high profile cases -- the charge of "deceptive testimony" could be turned against them. And if Barack Obama is still president at that time, he likely will receive some of the blame.
Elena Kagan's opinions on many topics of interest to Americans are still only minimally articulated, but in one area she has been outspoken: the standard to which Senators ought to hold nominees to the Supreme Court. On this issue, Elena Kagan got it right. The nomination process that has dominated the post-Bork confirmation world has prized inscrutability over all else, and Elena Kagan is the poster child for this trend. Few people could argue that she truly is the most qualified candidate for a seat on the Supreme Court or even the best prepared to advance her president’s liberal legal-philosophical agenda. But she does have two important factors on her side: her age, and her lack of public record.
The modern anemic confirmation hearing results from the interplay of two factors: the extremely limited scope of inquiry at confirmation hearings and the willingness to defer to the president in the absence of information about a candidate. Kagan took on the first factor in her 1995 Chicago Law Review book review, claiming that the standard debuted in Ginsburg hearings took the form of a "pincer movement." Almost any question was either too general to allow judgment or so specific that it risked asking her to prejudge a case that could come before her. The only things modern nominees are free to discuss are their prior writings -- cases they have decided as judges or other published work.
In such an environment, Kagan is the perfect candidate. She has never sat as a judge, so she has no cases to discuss, giving her a leg up on many qualified candidates on Obama’s shortlist. She also had the foresight to publish academic articles that almost entirely declined to take normative positions. She carefully limited her work to describing, without judging, trends in the law. Kagan herself said that allowing judges with well-known records to demur is more excusable, robbing the public of little information. Where there is a thin record, confirmation hearings may be the only chance to discover a nominee’s views before they are ensconced on the Court for life.
More than anyone else, Elena Kagan has the opportunity to transform the current "farce" of a confirmation process by actually answering questions. The Senators can do their part as well -- first by asking questions about important legal issues: what is the role of the Constitution in America today? What techniques and materials should we use to interpret it? What limits are left on our government? How should the globalization of our world affect a judge interpreting American law? The Senators also should refuse to accept no answer for an answer. They should politely insist that their questions be answered or refuse to vote for someone who will not be forthcoming.
Kagan herself articulated a standard under which "a nominee can say a great, great deal before making a statement that…nears the improper." I hope next week Elena Kagan decides to live up to her own standard.
The nomination of Elena Kagan was a risky choice for President Obama. While she is likely to have views more or less sympathetic to the President's -- although she's probably more of a free speech hawk than him -- she presents the President with political risks. Her opponents are casting her inexperienced because she has never been a judge and only practiced law for a few years, and that line of attack has purchase with the American people. My own view is that the Supreme Court needs fewer judges and some of the finest Supreme Court Justices had never before been judges, like William Rehnquist, Earl Warren, and Louis Brandeis. Judicial experience should not be mandatory for a Supreme Court appointment. Still, casting a nominee as insufficiently experienced and lacking in the requisite qualifications may be the most powerful line of attack in any Supreme Court confirmation battle.
In Advise and Consent, Lee Epstein and Jeffrey Segal examined the history of confirmation battles and found that concerns about experience and qualifications were more difficult to overcome than concerns about ideology. With one especially notable exception, Robert Bork, most nominees who are opposed on the basis of their ideology end up being confirmed. Nominating someone with views similar to his own is one of the perks of being President. But appointing someone who is thought to lack the requisite experience and qualifications can be devastating. Harriet Miers was forced to withdraw because she was seen as an unqualified crony of President Bush; Abe Fortas's nomination to be Chief Justice was rejected, even though he had already served on the Supreme Court, because he was seen as lacking the most important qualification for a Justice, impartiality (he had accepted payments for speeches from private businesses); Douglas Ginsburg still sits only on the D.C. Circuit because, as a professor, he showed disrespect for the law by smoking pot.
Barring any extraordinary revelations, Kagan has the votes to be confirmed. But President Obama doesn't need a squeak-though victory. His presidency is on the ropes already. If he had chosen a John Roberts of the left -- someone with a long background of arguing before the Supreme Court, like, say, a Seth Waxman -- this nomination could have been a political victory for the President. Instead, even if Kagan gets through and turns out to be a terrific Justice, the President will have lost some of the confidence of the electorate that is so precious to him now.