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5 myths about Supreme Court confirmations

In 63 to 37 vote, the Senate confirmed U.S. Solicitor General Elena Kagan as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.

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By Kashmir Hill and David Lat
Monday, May 10, 2010

Elena Kagan, President 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.

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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. The last justice to join the court without past judicial experience was William Rehnquist -- who, like Kagan, was nominated to the court from a high-ranking position at the Justice Department.

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, as well as her body language, will be televised across the country, then parsed with the kind of obsessive attention that justices give to provisions of the Constitution. Despite all the attention, though, 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. Bork's nomination was contentious from its outset, but his performance at the confirmation hearings did him in.

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 -- who, due to her relative youth and lack of prior judicial service, has an even shorter paper trail than many past nominees.

The lack of substantive legal discussion is why legal scholars and commentators frequently dismiss the hearings as kabuki theater -- stylized, ritualized and devoid of suspense. One of the best descriptions of the confirmation hearings came from Kagan herself. In a 1995 article, the young law professor at the University of Chicago condemned them as "a vapid and hollow charade."

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 résumés, judicial opinions and law review articles. It now includes informal discussions and statements filed away in the immense digital file cabinet that is 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.

Several weeks before Obama nominated Sonia Sotomayor to the Supreme Court a year ago, for example, a conservative blog, Verum Serum, unearthed a YouTube video from a panel discussion eight years prior during which Sotomayor expressed hope that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." This "wise Latina" comment was ubiquitous well before she was nominated, as well as during the weeks leading up to her confirmation hearings. Sotomayor was prepared, telling the Judiciary Committee, "I want to state up front, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging."

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 Justice John Paul 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.


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