Tagged: Supreme Court nomination


Confirmation Hearings: If I Could Disabuse Senators of Two Things…

As the Senate Judiciary Committee begins confirmation hearings today for Supreme Court nominee Elena Kagan, be prepared for many shallow questions from senators and many empty answers from Elena Kagan. These hearings often turn into “vapid and hollow charades” (to quote Kagan) because senators’ questions are based on misconceptions of judging at the Supreme Court. These misconceptions are either sincerely held beliefs, beliefs based on ignorance, or disingenuous devices for hammering the nominee and scoring political points. It could also be a mixture of the three. Confirmation hearings would be much more productive if senators were disabused of two misconceptions.

1.  Mechanistic judging:  We will hear senator after senator say something to effect of, “We need impartial justices on the Court who will follow the law as it is written and respect precedent. We need strict constructionists, not judicial activists on the Court.” The computer-like, mechanical jurisprudence view of judging — where judges simply apply “the law” to the facts of a given case like a technician — is a straw man, plain and simple, particularly at the Supreme Court level. It is a view of judging that cannot be taken seriously. The Supreme Court takes cases that contain a high degree of legal ambiguity. The justices deal in the gray areas of the law, not the black and white ones. Thus, simply applying “the law” in a straightforward fashion is not possible or realistic at the Supreme Court level.  “The law” in a given case — precedent and legal doctrine, constitutional provisions, statutory provisions — is never completely evident and rarely provides a clearly-defined answer to the question in a case. Justices, then, have considerable discretion to use their own judgment to render a legal rationale and interpretation applied to the facts of the case. And guess what, senators? Justices frequently disagree with each other on how certain provisions should be interpreted. Justices also have policy preferences that color their judgment to an extent — they are humans, not computers. This does not mean that law does not matter at all. But since the cases the Court hears contain considerable gray area, which naturally gives justices considerable discretion, they will undoubtedly rely on extra-legal considerations, in addition to legal considerations, to render a decision.

2.  The Supreme Court makes policy — get over it! We will also hear senators say something to effect of, “The role of the Supreme Court is to interpret the law, not to make law. Congress makes law and policy; the Supreme Court is not a policymaking institution.” At a constitutional organizational level, this is correct — Congress makes law, the executive enforces the law, and the judiciary interprets the law. But in practice, there is absolutely no doubt that the Supreme Court makes policy. When the Supreme Court strikes down a law as unconstitutional, that is a policy, plain and simple. It is a policy directive with which the other branches, the states, and the American public must comply since it is the law of the land. Judicial review is a vehicle for policymaking, and I doubt any living human being will call for the reversal of Marbury v. Madison. When the Court renders an interpretation of a law via statutory interpretation, that is policymaking. Moreover, as the head of the federal judicial hierarchy, the Supreme Court is tasked with making legal policy for the lower courts in order to guide their decisions. So at this level, the Supreme Court makes policy — there is no getting around it.

To be fair, senators sometimes mean something else when they attack the Court for its policymaking role. They are sometimes referring to justices using the Constitution to “create” rights and liberties that are not clearly enumerated in the text of the Constitution (substantive due process), e.g., the right to privacy, abortion, and so forth. This has some overlap with the first topic above related to charges of judicial activism. Substantive due process — what rights are covered under the 14th Amendment’s “liberty” clause? — is a legitimate topic that is worthy of rigorous questioning (though nominees usually avoid this question). But it should not be lumped in with the notion that the Court inevitably makes policy in the manner that I have described above.

The bottom line: Senators need to realize that justices deal with complicated legal questions that do not contain clearly evident answers. There is often a legitimate legal rationale supporting both sides of a case, which is precisely why the Supreme Court is deciding the case. The Court is tasked with making legal policy in some form or another. The justices have to decide the case, and they have to provide a legal rationale for the given case that will serve as legal guidance for the lower courts and for future Supreme Court cases. It is extremely counterproductive for senators to continue propagating misconceptions about the Supreme Court in Senate confirmation hearings. If they could move beyond these misconceptions, perhaps the words “vapid,” “hollow,” and “charade” could be removed as descriptors of the process.


“Success” on the Supreme Court: Do We Know It When We See It?

In a prior post, I made a simple, logical argument for why judicial experience, particularly U.S. Courts of Appeals experience, is an important prerequisite for being a Supreme Court justice. My argument, which I clarified further in a response, is that out of all of the jobs out there, being a U.S. Court of Appeals judge is the most similar to being a Supreme Court justice. The day-to-day tasks bear many similarities, and Courts of Appeals judges process and decide the same types of legal issues that Supreme Court justices decide. In short, being a Court of Appeals judge best prepares one for being a Supreme Court justice because of the similarity of tasks and the strong foundation that exists for understanding, processing, and deciding a wide array of legal questions in the context of a variety of case facts. You get that foundation through practice. Other jobs may give one practice for the job, but clearly, being a federal circuit court judge exposes one to a more diverse set of situations than, say, a private or government lawyer, a law professor, a law school dean, a politician, a White House Counsel, and so forth.

Several people responded with insightful comments. CoOp contributor Lawrence Cunningham noted that one should “consider that at least 40 of the 110 or so SCOTUS Justices were not previously judges and some of them were quite successful on the Court.” He included many of the usual suspects, including John Marshall, Earl Warren, Joseph Story, Louis Brandeis, and Hugo Black.

CoOp contributor Dave Hoffman stated: “So it is an empirical question – isn’t it? And I don’t think there is much evidence at all that previous judicial experience makes appellate court judges more productive, more cited, etc.”

And CoOp reader Anthony Encarnacao responded with: “[The] bottom line here [is that] experience is not the key indicator of success. Prior success in all aspects of one’s career is usually a better indicator of success.”

These three lines of thought got me thinking about how we define “success” in the context of Supreme Court justices.

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Looking Good for Kagan

On Monday, I suggested that the military recruiters/Solomon amendment issue had the potential to cause problems for Kagan’s nomination because of the hot-button issues it evokes — support for the military and gay rights. The issue has not gained significant momentum among Republicans, which is, of course, a positive sign for Kagan going forward. As Tom Goldstein noted yesterday:

Three days into the nomination, not much has changed.  No Democrat has opposed Elena Kagan; no Republican has endorsed her.  No Senator or serious commentator has suggested that she won’t be confirmed, or that the nomination should or would be filibustered.

Moreover, in yesterday’s The Caucus (New York Times), Carl Hulse reports on positive impressions of Kagan from two key Republican senators — Scott Brown and Susan Collins. Regarding the military recruiters flap, Brown stated (quoting from Hulse’s article), “It was very clear to me after we spoke about it at length that she is very supportive of the men and women who are fighting to protect us and very supportive of the military as whole. I do not feel that her judicial philosophy will be hurting our men and women who are serving.”

Senator Collins also spoke highly of Kagan and suggested that the chances of a Republican filibuster would be low. Collins specifically invoked the “extraordinary circumstances” standard for filibustering judicial nominees that was brokered by the Gang of 14 a few years back, stating, “At this point, I do not see the extraordinary circumstances that I use as a standard to determine whether to filibuster a nominee.”

With these remarks from two key Republican senators, you would have to think that Republicans will likely leave the Kagan nomination alone. There is always the possibility that another issue will arise or that existing potential problems will gain traction with Republicans. But given the lack of “buzz” over controversial issues in elite discourse, things are looking good for Kagan.


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.


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.


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?