Kagan and Consensus-Building.

According to everyone who knows anything about Elena Kegan, she's apparently a great consensus-builder: politically savvy, good at bringing people together in service of a common goal. The president cemented that image of her yesterday in his announcement of her nomination, praising "her fair-mindedness and skill as a consensus-builder."

But what does it mean to be a consensus-builder when we're talking about the Supreme Court? This quality of hers has been much praised, but it's also been something of an irritant to liberals, who seem to think that being a consensus-builder just means you're ideologically wishy-washy. Byard Duncan at Alternet equates "consensus-building" to holding both liberal and conservative positions:

Kagan’s philosophy may be ambiguous, but it’s not altogether unstated. Kagan is, after all, an accommodator. Like Obama, she is a consensus builder, not a hard-line activist: She’s pro-abortion rights but also pro-death penalty; she hates DADT, but has expressed support for the Defense of Marriage Act as well.

This is a bizarre take. Consensus-building isn't about having a haphazard collection of policy positions that makes people on both sides of the aisle likely to agree with you. We need only to look at the Court's other famous consensus-builder, Chief Justice John Roberts, to see that's not the case. Not only was Roberts known as a consensus builder, he actually made it is his goal to have the Court he presided over produce more unanimous decisions. Yet, somehow, Roberts' conservative credentials aren't in dispute. 

When talking about the Supreme Court, we need to remember that judging is a lot different from legislating. In the legislature, there are a bunch of competing policy proposals. To build consensus, you have to figure out the right mix of those policy proposals that legislators will support to get the thing passed. Legislation is proactive, but it also acts by omission, as we saw in the fight over the public option. Judging, by contrast is reactive. The Court can only decide the case that is before it. Although there are often many possible grounds for decision, often at the end there are really only two options: granting the appealing party the relief it seeks, or not. That's it.
Consensus-building in the context of jurisprudence isn't about giving in. It's about doing what John Roberts has tried to do, which is finding narrow grounds of decision that everyone, or close to everyone can agree on. Now, obviously you can't do that all the time. Sometimes justices simply won't agree. I find many of John Roberts' beliefs odious, but I agree with his position that unanimous decisions are a worthy goal. It increases the Court's legitimacy and improves public confidence in the Court's decisions. Unanimity is essential for de-emphasizing the importance of each individual Supreme Court nomination. The constant flow of 5-4 decisions on incredibly important issues has given us the situation we have now, where every nominee has to be 50 years old, educated at Harvard or Yale, and not marred with any potentially controversial public acts or statements. 
Ironically, if Elena Kagan is the consensus-builder she's cracked up to be, it may help lead us to a world where we don't need an Elena Kagan.

--Silvana Naguib

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