Category: Supreme Court


How to Fix the Supreme Court Justice Confirmation Process

There are few defenders of the Supreme Court Justice confirmation process.  Every time it occurs, we go through a charade of hearings, where candidates are coy about their positions on most issues and talk about “neutrality” and being a mere “umpire.”

Who are they kidding?  We all know that no judge is neutral or a mere umpire.  We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets.  We all know that ideology has some effect on judicial decisions.  And we all know that judges don’t find the law but make it.

The fact that “we’re all legal realists now” makes the Supreme Court Justice confirmation process a political morass.  It has also resulted in presidents picking candidates for the Court who are young and who lack an extensive paper trail on hot-button issues.

It used to be possible for the truly great jurists of their generation to be appointed to the Supreme Court, a capstone to their careers.  But now it’s no longer possible because they are likely to be older and have taken positions on too many controversial issues. I think this is a shame.

How do we fix the process?

1. We need term limits for Supreme Court justices.  Kagan could conceivably be on the bench for 40 years.  That’s an absurd amount of time.  Nobody should be in a position of power for that long.  Term limits will prevent the trend toward picking younger people for the Court, and allow more seasoned jurists to serve on the Court as a capstone to their careers. I suggest a term limit of 10-15 years.  That’s more than enough time.

2. The Constitution is too hard to amend.  It’s virtually impossible.  Of course, we don’t want to make it too easy to amend (i.e., we don’t want to emulate California).  But now it is so difficult that trying to amend it is a fool’s errand.  This makes the Supreme Court have too much power, for it really becomes the final word on many issues.  Making the Constitution easier to amend will make Supreme Court decisions less powerful.  If a supermajority doesn’t like a Court decision, the Constitution can be amended.  But right now, the best chances of reversing a Court decision are to hope for a change in Court personnel.

With term limits and a Constitution easier to amend, the appointment of Supreme Court justices will lack the titanic stakes that the process currently has.   Right now, there simply is way too much power in the hands of people who can sit on the Court for an entire generation and make decisions that are effectively impossible for the People to reverse.


Mike Allen Predicts 65 Yes Votes for Kagan

In today’s Playbook, Mike Allen (of Politico) predicts that Kagan will receive 65 votes in favor of confirmation. Part of the basis for his prediction comes from the roll-call vote on her nomination for Solicitor General. Seven Republicans voted in favor of her SG nomination:  Coburn (OK), Collins (ME), Gregg (NH), Hatch (UT), Kyl (AZ), Lugar (IN), and Snowe (ME). The vote was 61-31 (7 senators — 4 Dems, 3 Repubs — did not vote).

While the vote on Kagan’s SG nomination can help guide a prediction on the vote for her Supreme Court nomination, let’s remember that voting for a lifetime appointment on the Supreme Court and voting for a political appointment in the executive branch are two entirely different beasts. In short, we should not assume that because a senator voted for Kagan for SG that s/he will definitely vote for her Supreme Court nomination. To be fair, Allen does not automatically assume that all 7 Republicans who voted for her SG nomination will vote for her Supreme Court nomination. But of the 7, he predicts that Coburn, Hatch, and Kyl will vote no and the remaining 4 will vote yes.

Christopher Snow Hopkins of the Ninth Justice has written a compelling article on this topic. Sen. Hatch’s and Specter’s remarks — quoted from the article below — are particularly relevant:

Sen. Orrin Hatch, R-Utah, promised a thorough evaluation of Kagan’s legal career, as well as her judicial philosophy, which he identified as “the more important qualification.” But he cautioned that his support for Kagan’s nomination to solicitor general last year was no guarantee of “her qualifications for the Supreme Court or my obligation to support her.”

Sen. Arlen Specter, D-Pa., who voted not to appoint Kagan as solicitor general, said that he would consider voting for her this time around depending on her testimony on such issues as executive power, warrantless wiretapping, voting rights, congressional rights and a woman’s right to choose.

“I voted against her for solicitor general because she wouldn’t answer basic questions about her standards for handling that job,” he said. “It is a distinctly different position than that of a Supreme Court justice.”


Kagan and Executive Power

Much of the elite discourse regarding Kagan’s nomination has centered on the military recruiters/Solomon Amendment issue, Kagan’s lack of judicial experience, her scholarly record (some calling it rather thin), and her views on executive power. SCOTUSblog has summarized (see here as well) many of the immediate reactions. Conservatives are critical of the first two items, while many liberals are concerned about Kagan’s views on executive power, worrying she is too willing to grant the executive branch broad discretion in areas such as questioning terrorism suspects. In short, liberals worry that Kagan will propagate the Bush-Cheney vision of executive power.

David Fontana has written an interesting opinion piece in Politico about what we might expect from Kagan on issues of executive power. Fontana’s article will certainly not alleviate concerns that liberals have about Kagan.


My Concern With Kagan

So President Obama has nominated Elena Kagan to the Supreme Court. He certainly could have done worse. I am not without concerns and chief among them is that Kagan is a scholar of public law. Given that the vast majority of the Court’s docket concerns public law this may seem like an odd concern. I certainly prefer the study of contract law to administrative law, but the Supreme Court is seldom called on to decide private law issues while public law cases form its bread and butter.

With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or professional interest in business. This is important because while public regulation makes up the bulk of the Court’s docket, private businesses are overwhelmingly the target of that regulation. Everything in Kagan’s career, however, suggests that she is intellectually geared to look at the regulatory process from the government’s point of view. For example, in law school I had an advanced seminar on administrative law from Kagan. It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

At this point we can expect the obligatory dance around abortion rights and other hot button issues. We can expect a discussion of Kagan and the military. (I’ve got ideas for a post on the unfortunate disconnect between the culture of law schools and the culture of the military; stay tuned.) We can expect a rehash of the merits of umpires versus empathy. While discussing empathy, however, it’s worth thinking about the problems of a Court that is increasingly packed with justices who have had limited practical or intellectual engagement with the world of business.


Will Republicans Filibuster Kagan’s Nomination?

Politics is messy and complicated, and it seems like it has gotten extra messy since Obama took office. On many issues on the political agenda, Republicans are united against President Obama. Killing bills requires that Republicans maintain their 41-member “opposition coalition” in the senate.

Tom Goldstein at SCOTUSblog discusses what we can expect from senate consideration of the Kagan nomination, both in terms of process and substance. A topic that hasn’t received enough attention, however, is whether the war between Obama and the Republicans will carry over to the Supreme Court nomination. Will Republicans filibuster Kagan’s nomination? With the midterm elections coming up and the congressional session ending in December, would it be tactically smart for Republicans to delay confirmation?

Some considerations:

1.  Republicans will likely pick up seats in the senate as a result of the midterm elections. Republicans may be thinking: Let’s make Obama nominate someone in a new political context in January — one that will likely be more favorable toward Republicans. Force his hand and make him renominate Kagan (or someone else) in, say, a 55-45 senate instead of a 59-41 senate. Obama might even back down and change his nomination.

2. What basis would Republicans rely on for delaying Kagan’s nomination? Answer: the military recruiters/Solomon amendment issue. I believe that this issue, if framed effectively by Republicans, could become a significant obstacle to Kagan becoming a justice. Think of the hot-button nature of this issue: pro- versus anti-military in the context of a continuing war on terror and the issue of the U.S.’s volunteer army having a hard time maintaining numbers.  Add to this one of the most polarizing issues in American politics: gay rights. Republicans could portray Kagan as anti-military and overzealous in her advocacy of gay rights. This portrayal of Kagan as an extremist on two hot-button policy dimensions would provide plenty of ammo to delay, and perhaps quash via the filibuster, her nomination. As a result, Obama would be forced to either renominate Kagan or find someone else who could muster the 60 votes necessary to proceed to an up-or-down vote.

3. What about the issue of having an 8-member Court? Having an 8-member Court for the start of October Term 2010 would benefit conservative interests. The Court would have 4 solid conservative votes, Kennedy (who has become more solidly aligned with the four more staunch conservatives), and the 3 remaining liberals. Having a vacancy on the Court would not bother Republicans on policy grounds. But if Democrats effectively emphasize the importance of filling a vacancy as soon as possible, perhaps Republicans would relent. As a side note, Justice Stevens could have made this vacancy issue moot had his retirement been conditional on the confirmation of his successor, which is what Justice O’Connor did (recall that she did not step down until Alito was confirmed).

While the chances of the Republicans delaying or even killing Kagan’s nomination are probably small, I believe it is a real and distinct possibility. Because of the fiery policy issues that it evokes, Kagan’s “military recruiters problem” provides an ideal vehicle for Republicans — if framed effectively — to wreak havoc on her nomination.


More on Kagan….

While many people know the general career path of Supreme Court nominee Elena Kagan, Tom Goldstein at has written an in-depth profile of Kagan that is extremely informative.

Something I found particularly interesting (quoting from the SCOTUSblog piece):

In a 1995 review of Stephen Carter’s book on confirmation hearings, “Confirmation Messes, Old and New,” Kagan criticized senators for failing to ask, and nominees for refusing to answer, questions about their views on specific issues.  Senators ought to dig deeply, she contended, asking straightforward questions about both the nominee’s judicial philosophy and her substantive views on constitutional issues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution” (934). Nominees could be asked about their views on particular issues that the Court regularly faces, such as “privacy rights, free speech, race and gender discrimination, and so forth” (936). On this view, a nominee ought to refrain only from expressing a “settled intent” to vote a particular way on a particular case that might come before her.


The Kagan Nomination

Various news outlets are reporting that Elena Kagan will be the next Justice pending confirmation.  Earlier today I said this would be a really lackluster and troubling choice.  Troubling, I think, was too strong. But I’m sticking with lackluster.  Her nomination is like going to a five-star restaurant with a fantastic dessert menu and ordering vanilla ice cream.

Let’s consider the nominee’s record.  Is she a stellar Solicitor General?  Hardly.  Her office’s handling of Citizens United was a disaster and her oral arguments in other cases were plodding at best.  Is she an outstanding writer?  No, though you can read her (few) law review articles and judge for yourself.  Was she a good scholar?  Well, the University of Chicago Law School must not have thought so, as they apparently did not ask her to come back after she served in the Clinton Administration.  Does she possess a judicious temperament?  The people who worked most closely with her and for her will have to answer that one.

Ultimately, her only real credential is that she was a good dean at Harvard Law School.  (Of course, she was a good dean during the bubble and got out just as the gravy train left town, but that’s not her fault.)  Is that supposed to be compelling?  I don’t see why.  Able administrators are important, but I don’t think that correlates with what makes someone a good appellate judge.

Now am I saying that Kagan should be rejected?  No.  I’ve made it clear with respect to Goodwin Liu’s nomination that I think the President’s picks should be approved by the Senate so long as the person is qualified and falls within the mainstream of the President’s party.  The SG clearly fits the latter criterion and (marginally) meets the first one.  (I mean, she not Harriet Miers.)  And who knows, maybe she’ll turn out to be a great Justice.  But it’s a risky bet.

UPDATE:  So who will the new SG be?


The New Justice

Building on Brandon’s post, I sure hope that the President does not pick Elena Kagan.  I think that she would be a really lackluster and troubling choice.  But I’ll hold my fire until the nominee is announced tomorrow.


Will Kagan be the Next Supreme Court Justice?

First, I’m thrilled to be guest blogging at Concurring Opinions. I look forward to an illuminating conversation regarding the Supreme Court’s next justice.

Mike Allen at Politico reports that, based on White House sources, Elena Kagan will be the next Supreme Court justice (thanks to Dave Hoffman for sending the story). Author of the reliable “Playbook” on Politico, Mike Allen is a force to be reckoned with. Of course, once word leaked that Kagan was the one, the White House sought to diffuse the rumors, claiming the president has not yet made his decision. This leads to speculation, of course, over whether the White House is floating a test balloon. They may want to test the reaction to hot-button issues like Kagan’s opposition to military recruiters at Harvard, which would undoubtedly be a dominant theme in a Kagan confirmation process.

My prediction for the next justice, which I realize is probably now incorrect given the latest developments, was Judge Diane Wood.  Back in December, Mike Sacks at First One at One First made a compelling case for Judge Wood. Above the Law also makes an in-depth argument for Wood. In addition, the New York Times had an interesting story a few weeks ago about Judge Wood’s persuasive abilities, at times even winning over her conservative — and legendary — colleagues, Judges Posner and Easterbrook.  That story further convinced me that Wood would be the one. President Obama may see her as a potentially persuasive force on a polarized Supreme Court. But she is widely perceived to be more liberal than Kagan, and she has an established judicial record. Though I will say that if a Kagan confirmation process turned almost completely on the military recruiters issue, then Kagan is going to be perceived as quite liberal and painted as extreme in her views. So in the end, who would really be perceived as more liberal once the confirmation process starts gaining momentum? Kagan or Wood?


Fragmented Opinions

When Chief Justice Roberts was nominated in 2005, there was a lot of discussion about his goal of reducing the number of 5-4 opinions.  That hasn’t worked out, but I was never sure about how much that matters.  With rare exceptions, the fact that an opinion is sharply divided is irrelevant.

Salazar v. Buono, which came down yesterday, illustrates a real problem that the Chief should work on — cases where the Court cannot produce a majority opinion at all.  That is a totally unsatisfactory result that drives attorneys, government officials, and lower court judges batty.  I wonder whether the Court should adopt a norm that if it cannot agree on a majority opinion the writ of certiorari should be dismissed as improvidently granted.  (Note that this is different from a five-person majority opinion where one member writes separately. In that case, you at least have a short at extracting an intelligible holding.)  There are instances (a case in the Court’s original jurisdiction, for example) where even a splintered decision is better than nothing, but usually that is not the case.  There’s nothing wrong with leaving the lower court opinion in place and taking up a similar issue in a subsequent case where a clear decision can be rendered.