Recently, I argued that President Barack Obama should take advantage of the unusually favorable political situation to appoint a strong, proven liberal to replace John Paul Stevens. With the nomination of Solicitor General Elena Kagan, one thing we know is that this opportunity has been squandered. What we don’t know is much about the contours of her judicial philosophy. The best that can be hoped for now is that Kagan will be able to assuage some of the justified doubts that some progressives have about her nomination at her confirmation hearings.
Nothing in the skepticism expressed above should be taken as a denial of Kagan’s many qualities. Her widely hailed record as a teacher and administrator speaks for itself. Her intelligence has been established beyond any question. Her solid, though not illuminating, legal scholarship certainly establishes that she comfortably exceeds the minimum standards that might be expected of a Supreme Court justice. Comparisons to Harriet Miers, who would have been hard-pressed to pass a leniently graded undergraduate constitutional-law class judging from her initial performance as a nominee, are unwarranted. And I have no doubt that, as many of her defenders have argued, she is “liberal” in a broad sense of the term. She will not join the Court only to reveal herself to be a clone of Samuel Alito.
But it must also be noted that plenty of candidates, including all of the other members of Obama’s shortlist, exceeded the formal minimum qualifications by an even greater margin. To say that Kagan is reasonably qualified for the Supreme Court does not constitute an affirmative reason to select her instead of an arguably more accomplished and more clearly liberal candidate such as Diane Wood or Sidney Thomas. When considering a Supreme Court nominee, a president should be looking for something more than merely "good enough." Kagan may be to the left of John Roberts, but that still leaves a lot of ideological territory open. Two historical Supreme Court nominations illustrate the magnitude of the risk Obama is taking.
First, consider the case of Byron White, a John F. Kennedy appointee. Although little public record of his constitutional views existed, White was well known to the Kennedy administration and had views broadly consistent with mainstream Democrats'. On civil rights and federal power -- the issues of the greatest interest to the Democrats of the early 1960s -- White remained a consistent liberal throughout his career. But White was less solid on the civil-liberties issues where the Kennedy administration’s commitment to progressive values was more dubious. He dissented from many of the Warren Court’s landmark rulings on the subject, including Miranda v. Arizona. Over the course of a long judicial career, he also proved to be a surprisingly consistent ally of William Rehnquist on the new issues that inevitably arose before the Court, such as abortion.
And so liberals had a Democratic appointee who dissented in many of the Warren and Burger courts' liberal landmarks and wrote the Court’s appallingly homophobic opinion upholding laws banning “sodomy” over the dissents of two Republican appointees. This is not to suggest that Kagan will vote to overrule Roe v. Wade or Miranda v. Arizona. After all, what it means to be a mainstream Democrat is very different in 2010 than it was in 1962. But it does suggest that putting a relative blank slate on the Court carries a substantial risk of ideological heterodoxy and drift.
We should also remember Ronald Reagan’s handling of the nomination of Robert Bork. As Jan Crawford Greenburg explained in her recent book about the Court, had Reagan nominated Bork instead of Antonin Scalia while the GOP controlled the Senate, it is overwhelmingly likely that Reagan could have had both on the Court. Instead, Reagan had to settle for the more centrist Anthony Kennedy.
So why is Obama repeating Reagan's mistake now? Kagan is the youngest and perhaps the most easily confirmable of the top Supreme Court candidates, and Obama is virtually certain to receive at least one more appointment just as the Republicans are virtually certain to gain substantial representation in the Senate this year. It would be smarter to let Kagan get more experience as solicitor general and to use this opportunity to nominate a candidate who might face a tougher confirmation later on.
Indeed, Obama may be doing Reagan one better, as nominating Kagan presents the possibility of getting two liberal equivalents to Kennedy rather than just one, as getting even a mainstream liberal confirmed in a closely divided Senate will be difficult.
In order to win over progressives afraid of this prospect, Kagan needs to fill in some of the unknown questions about her record before the Senate. If Kagan responds to questions with evasiveness and the now-standard empty truisms about the rule of law, it will be impossible for progressives to give her the enthusiastic support that should be expected of a Democratic nominee facing a nine-vote majority in the Senate. Kagan herself has criticized the vacuity of contemporary confirmation hearings, and the American public needs to know more about her constitutional philosophy and how it might apply to issues such as executive power, campaign finance, civil liberties, and corporate power.
Given the incentives of Supreme Court nominees, it may be futile to hope that Kagan will break with the recent trend of saying nothing of value at the confirmation hearings. And if she fails to take the hearings in a more substantive direction, it will be difficult to avoid the conclusion that while Obama has not necessarily made a bad choice, he has certainly taken an unnecessary risk.
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