Elena Kagan, President Barack Obama’s nominee to replace Justice John Paul Stevens on the Supreme Court, is already an exception to one widely held rule about who makes it to the nation’s highest court: She’s never been a judge.
That puts Kagan, the current solicitor general and former dean of Harvard Law School, at odds with two-thirds of justices in history and with the nine current justices, all of whom served on federal appeals courts prior to their Supreme Court appointment.
So Kagan’s nomination already challenges that myth. But there are others worth disproving as we embark on yet another Supreme Court confirmation.
1. How a nominee performs during congressional hearings matters in the final vote.
When Kagan appears before the Senate Judiciary Committee, her every utterance from the witness chair will be televised across the country, then parsed with the kind of obsessive attention that justices give to provisions of the Constitution. And yet, the hearings are unlikely to make a difference in the final vote.
Confirmation hearings as televised spectacle began with Justice Sandra Day O’Connor’s nomination in 1981. Since then, only one nominee has been voted down following his hearings: Judge Robert Bork, the conservative scholar who at his hearings decided to argue with the senators over his controversial views.
Nominees since Bork have not made the same mistake. Instead, they have refused to divulge their views on controversial legal questions, politely but firmly declining to answer on the grounds that such issues might someday come before the court and that prejudging their merits would be improper. Expect the same from Kagan.
2. Everything a nominee has ever said or written is on the Web, making confirmation much harder.
Public scrutiny of nominees is no longer limited to their resume, judicial opinions and law review articles. It now includes informal discussions and statements filed away on the Internet.
Rather than a stumbling block to a White House seeking to get a nominee confirmed, however, the easy availability of this information functions as a safeguard. By the time the president makes a pick, the blogosphere has conducted a thorough vetting of his shortlist and found any smoking guns.
With Kagan, the Obama administration was already aware before nominating her of possible criticism concerning her record of minority faculty hiring while dean at Harvard and her position on military recruiting on campus — and the administration already developed responses to these issues.
3. With two nominations already, Obama could reshape the court for decades to come if he wins a second term.
After Stevens officially steps down at the end of the current court term, four of the remaining justices will be over 70 years old. Many court watchers expect Justice Ruth Bader Ginsburg, 77, to retire before the end of Obama’s first term. Still, even if he gets to appoint three justices, or one-third of the court, Obama may not be able to reshape the institution to the same extent his predecessor did.
With a mere two appointments — Chief Justice John Roberts and Justice Samuel Alito — George W. Bush moved the court significantly to the right, in part because he had the opportunity to replace a justice who was a swing vote: Justice Sandra Day O’Connor. The 5-4 decision in the Citizens United case in January, which gave corporations a greater ability to influence elections, reflects the profound effect that Bush had on the court.
Obama simply can’t achieve the same lasting impact because the justices he would be replacing — such as David Souter, Stevens and Ginsburg — are already in the liberal camp.
4. The confirmation process has become so partisan that no true liberals or conservatives can get through it anymore.
The Supreme Court isn’t necessarily the battlefield on which presidents deploy their most partisan judicial warriors. For instance, federal appeals court judge Diane Wood, on the president’s shortlist this time, was considered by some to be too liberal for successful Senate confirmation.
But when one party controls the White House and has a majority in Congress, nominees understood to be “true liberals” or “true conservatives” have made it through the process. That’s what happened for Clinton-appointed liberal Ginsburg and Bush-appointed conservatives Alito and Roberts. A filibuster is the only way a minority party can stop an appointment, and it’s rarely used over a Supreme Court nominee.
5. The confirmation process may be flawed, but we’re stuck with it.
Supreme Court nominees who follow in Kagan’s footsteps could very well face a different path from nomination to confirmation. The process is not dictated by the Constitution or any statute; rather, it is a creature of political custom and tradition. As such, it could be readily changed, if the president and the Senate could agree on how.
Whether the hearings still perform a useful role in assessing the fitness of nominees for judicial office is a question worth asking — unlike, sadly, many of the questions that grandstanding senators will soon be posing to Elena Kagan.
David Lat is founding editor and Kashmir Hill is a co-editor of Above the Law, a legal blog. This first appeared in The Washington Post.
