The Kagan Nomination
May 11, 2010
Questions and Answers:
As of her Supreme Court nomination, Elena Kagan is as likely to be confirmed as any nominee in recent history, for five reasons.
First, President Obama enjoys a larger Senate majority (59-41) than any other President in decades. The truly ugly Court confirmation battles – Robert Bork, Clarence Thomas, and two ill-fated Nixon nominees – came when opposing parties held the Presidency and the Senate. The power of any criticism of a nominee depends less on its merits than on whether it will persuade 51 Senators, so Republicans must persuade at least 10 Democrats to vote against Kagan.
Second, President Obama declined to nominate a liberal favorite, like Diane Wood or Pamela Karlan, about whom conservatives had staked out especially strong opposition. Most nominees who have faced real controversy had a thumb-in-eye-of-opposition quality: Bork not only was more conservative than any Justice at the time, but was the Nixon hatchet man who fired the Watergate special counsel after Bork's superiors refused; Thomas was a conservative African-American replacing an African-American civil rights giant. Kagan is a meet-them-halfway nominee, not a storm-the-barricades nominee.
Third, conservatives cannot plausibly depict Kagan as a radical. The worst they offer so far is that she, like many law school deans, lost a legal dispute with the military about the tension between (a) university policy (which paralleled state law) barring sexual orientation discrimination and (b) military policy expressly barring hiring, and requiring firing, of gays and lesbians. With the 2008 election a landslide for a President promising to end that military discrimination, gay rights is not the inflammatory issue it was years ago. Some depict Kagan as "anti-military" for this dispute; but are conservatives suing the United States to overturn the new health care law "anti-United States"? Of course not: suing a government body is just a way you challenge a law as unconstitutional; it does not mean you are "against" that entire government.
Fourth, several conservative leaders already concede Kagan's strengths. Ed Whelan, a Kagan critic, still praises her intellect; there will be no Harriet Miers-like attacks on Kagan's talents. Whelan also praises Kagan's fair treatment of conservatives as Harvard Law Dean; there will be no plausible charges of empathetically favoring one side, as conservatives argued against Sonia Sotomayor.
Fifth, liberal opposition will amount to little, based on the two such criticisms of Kagan so far. Some criticize Harvard Law's non-diverse faculty hiring under Kagan's deanship. But faculty hiring occurs by all-faculty vote, not by Dean's fiat, and law faculty are notoriously independent-minded folks who buck deans on key votes, especially hiring decisions. Harvard's non-diverse hiring makes me as an alumnus disappointed in the school, but not disappointed in Elena Kagan.
The other liberal criticism is that Kagan favors broad presidential power. But as Kagan herself wrote, presidential power is not inherently "liberal" or "conservative." Kagan came to that view as an attorney in the late-1990s Clinton White House, which used power over federal agencies to advance its agenda over the howls of the Republican Congress of Newt Gingrich and Trent Lott. Presidential power is less a tool of the right than a tool that helps the President's party, whichever it is. This point was best made by Jon Stewart in a 2007 Daily Show interview of a Bush White House counsel Jack Goldsmith: "Do you think the ultimate irony might be that all the work that Dick Cheney has done will make Hillary Clinton the most powerful president in history?" So while liberals just spent years fighting President Bush's excesses, Kagan's likely support for broader presidential power will not predictably serve either party over her tenure as a Justice from 2010 to perhaps 2040.
Surprises happen, of course. But the White House floated Kagan's name in advance, and both sides counter-floated criticisms already - and none seem powerful enough to derail a summer confirmation of Justice Kagan.
Part 1 of 2
Elena Kagan has long been the favored horse in the short-list race. Here's a few reasons why, and why those same reasons may come back to haunt her.
First, she has no paper trail. This seems to be the overarching rationale for her pick, because there are other short-listers who certainly seemed more like Supreme Court material in terms of their resumes. Yes, Solicitor General is a prestigious role that is often the stepping-stone to high places, including occasionally the Court. But even Kagan's appointment to that position looks more like a calculated move to give her credibility as a judicial nominee than a judgment of her own qualifications. After all, why else would a president choose as the nation's premiere advocate someone who had never previously argued a case in court?
Her lack of public record is generally touted as one thing that will ensure a quick and easy confirmation process. What can anyone attack? For starters, they can attack her lack of record itself. What kind of person makes an impression on people based, not on their opinions, but on their careful unwillingness to commit to a position? Someone who is a politically savvy and knows that their views would not be favored by the important decision-makers, or recognizes that any hard stand is liable to draw fire from one group or another. Is this the description of an evenhanded judge or a politician?
By depriving the public of a record to scrutinize, Kagan leaves us with only a few hints of her legal philosophy, all of which point to her as yet another consistent liberal vote, likely to approve the president's expansive legislative agenda that is already starting to come under constitutional fire. Her own limited record makes her 1995 call for a robust confirmation process even more salient. She wrote in The University of Chicago Law Review: "When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public." This is nowhere more true than when the confirmation process provides the only available window into a nominee's judicial philosophy and approach.
Part 2 of 2
Secondly, Kagan was always the likely Obama Supreme Court pick because they're old friends. Their ties go back to their University of Chicago days and thus she represents somebody the president feels he can trust to shape the court as he sees fit. Should this recommend her more strongly for the position? I think not. The president's description of an ideal judge suggests that he wants a judge who not only will substitute her own empathy with a party for objective legal standards in what he estimated were the 5% of "hard cases" (and the Supreme Court probably has more than its fair share of the hard cases). As I described in my pre-nomination contribution to this debate, he also misunderstands the classical role of the Court as the protector of constitutionality of our laws and a balance to the more active powers of the other two branches.
Finally, Kagan has objective qualifications that, it will be proposed, should substitute for a real understanding of what her legal views are. She was a tenured faculty member at two of our nation's top law schools, and the first female Dean of Harvard Law. (Never mind the fact that the bibliography of her scholarship is shockingly thin for someone in those positions, and that she has the same number of law review articles published as the SCOTUS runner-up, Merrick Garland, who also had over a decade of experience on the bench and never taught more than part-time.) She went to ivy-league schools and was smart enough to befriend conservatives who are now personally unwilling to oppose her despite the fact that their legal views can hardly coincide with hers. But being a successful dean and a good teacher are not qualifications for the high court. Having befriended both a future president and high-ranking conservatives are not qualifications either. We have next to no information about who Justice Elena Kagan would be, and that should give us pause. Until the Senators resolve to ask straightforward questions and demand straightforward answers, they should not agree to vote for an unknown quantity to serve a life term on our nation's highest court.
Elena Kagan's Legal Experience
Part 1 of 2
No one Justice can embody all the diverse legal experiences relevant to the Court's work. Ideally, some Justices would have trial experience, including criminal trials. Some Justices would have legal experience in the states. Other Justices, from private practice, would have legal experience with the private sector. Still other Justices would bring the perspective and knowledge of legal and policy issues that particularly affect distinct regions of the country, such as a Justice from the western United States who might understand issues involving management of the federal public lands, or Indian law, or water law, that play a more central role in the west. Yet other Justices would have had legal experience understanding the workings of the federal government. And others would have had prior experience with the craft of judging itself.
Seen in this broad perspective, Elena Kagan would bring two bodies of important legal experience to the Court. Neither has been sufficiently appreciated in the initial reception to her nomination, I think, though both are central to the Court's work. First, she spent about four years as a lawyer in the White House, at precisely the point at which the relationship between Congress and the executive branch comes to a head. Often, she had the role of navigating, with others, between Congress and the White House over legislation. Not only does she have an intimate understanding of how the White House functions internally, she should have a sophisticated knowledge of the "dance of legislation," and of all the messy negotiation, compromising, and dealmaking that goes on between the executive and legislative branches. This experience also includes understanding the relationship of the White House to the administrative agencies. All this legal experience is tremendously important to the Court's work. A good deal of the Court's work deals with exactly these kind of issues (rather than the cultural issues that attract so much more attention): the relationship between Congress and the executive branch; the interpretation of statutes that have emerged from the joint legislative-executive process of putting laws together; the role of agencies in implementing legislation. I can think of few positions in the government that would provide better understanding, not just of the law, but of the actual dynamics of power and institutional relationships that inform the lawmaking and law implementation process, than the position in which she served. When I clerked at the Court for Justice Marshall, from 1984-85, I recall that other Justices would frequently turn to him for insight concerning issues involving the trial process, since he had more trial experience than anyone else on the Court. Justices similarly turned to Justice Powell for perspective on issues concerning business, given his experience with those issues.
Some of the current Justices have also had experience in government. But for the most part, they saw different institutions and served in different roles than Kagan. The only one who served in the White House, like Kagan, is Chief Justice Roberts. Whether or not Justices would turn to Elena Kagan for insight concerning how parts of the government actually function (or fail to function) on various issues – and I imagine that some would – she would bring that experience to bear on how she applies the law to these critical areas of the Court's work.
Elena Kagan's Legal Experience
Part 2 of 2
The second area of her legal experience that would benefit the Court, and that has also been underappreciated thus far, is the 15 or so years she spent as a legal academic. I do not mean her administrative work as Dean of the Harvard Law School, but the 15 or so years of teaching, reading, thinking, and reflecting on the law with others, that has been central to her professional life (she continued to teach while serving as Dean). She has spent much of her career studying bodies of law that are also central to the Court's work: administrative law, constitutional law, civil procedure and, to a lesser extent, labor law. Good academics have certain unique contributions they can make to the judicial process, as well as certain potential limitations.
Those who spend years in practice, or even as judges, can develop a grasp of the intricacies of bodies of law they work with, but they often lack the time (and sometimes the inclination) to understand areas of law in a more comprehensive, or deeper, way. Academics are in a position to be able to see the broader architecture of bodies of law; to understand the deep historical development of that law, to recognize tensions and deep inconsistencies in a body of law that create problems for applying it; or to recognize how problems in one area of law connect to issues in other areas. Anyone who has read Elena Kagan's writing on administrative agencies or the First Amendment knows that exactly these qualities are abundantly on display in her writing. Justice Scalia was not a particularly prolific writer as an academic when he joined the bench. But he obviously had deeply thought through his views on a whole range of issues, like how to approach the interpretation of a statute or the Constitution, or the role of crisp, bright-line rules in developing doctrine, or the substance of what doctrine ought to be in areas like administrative law, in a way that has given him a powerful intellectual presence on the Court. Similarly, Justice Breyer's years of teaching and studying administrative law have helped him become a central force in shaping doctrine in that area. Being steeped in legal thought in the way good academics can be is not necessary, of course, to being a good or significant Justice. But the Court benefits greatly from someone who can bring this depth of learning to important bodies of law, to be combined with the different insights Justices from other backgrounds will have.
To be sure, there is a risk that academics can be too pie-in-the-sky to be good judges – too invested in fancy theories for their own sake, with little appreciation for how those ideas would play out in the actual contexts to which they will be applied. But no one, as far as I'm aware, has suggested there's any risk of that with Elena Kagan. And indeed, this is where the marriage between her years of practical experience at the center of government and her academic immersion in the law, including the law that regulates actions of the government, is very strong: the concrete experience and the deep learning should re-enforce and temper each other.
Thus, most of the discussion about the fact that she does not have the experience of having been a judge seems misplaced (the prior judicial experience of some of the current Justices shouldn't be overstated, either: Justice Thomas had been a judge for one year, Chief Justice Roberts for two, when they were nominated, which is more or less comparable to Elena Kagan's one year as Solicitor General). As I began, not everyone on the Court can embody all the legal experiences the Court ideally ought to have. But in many areas of the law central to the Court, Elena Kagan can draw on two powerful bodies of legal experience, as a lawyer at the intersection of the executive and legislative branches, and as a teacher, analyst, and student of the law, that would be of undoubted benefit to the Court as an institution and to the development of the law.