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 the right staked out especially strong opposition. Most nominees who 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, the right 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 with the military; 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 lack of diverse faculty hiring under Kagan’s deanship. But faculty hiring occurs by vote of all faculty, not by Dean’s fiat, and law faculty are notoriously independent-minded folks who buck their deans on key votes, especially hiring decisions. Harvard’s nondiverse 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 its 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 Administration attorney: “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.
Scott A. Moss is Associate Professor of Law at the University of Colorado School of Law in Boulder. EDITOR’S NOTE: This is an online-only column and has not been edited.
