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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.

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 by replacing liberal justices, such as David Souter, Stevens, and Ginsburg. Neither of the two conservative-leaning justices in the over-70 camp -- Antonin Scalia, 74, and Anthony Kennedy, 73 -- has indicated plans to retire any time soon. They will likely wait to retire, if they can, until a Republican president is in office.

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. The Senate has successfully filibustered a Supreme Court appointment just once, in 1968, to prevent Lyndon Johnson from naming sitting justice Abe Fortas to be chief justice. Because of the delay, President Richard Nixon had the opportunity to fill the seat instead, choosing Warren Burger.

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. As Benjamin Wittes pointed out in his book "Confirmation Wars," some of the most well-known aspects of the confirmation hearings, such as senatorial grilling of the nominee and the televising of the proceedings, are of relatively recent vintage -- first started in 1955 and 1981, respectively. Other nominees had given live testimony prior to John Marshall Harlan in 1955, but Harlan, called to testify in the wake of the 1954 decision in Brown v. Board of Education, was the first to be aggressively questioned about his views on specific cases and overall judicial philosophy.

For Supreme Court groupies and legal bloggers like ourselves, confirmation hearings can be an immensely enjoyable spectacle -- especially if they take a turn into the dramatic and confrontational, like those of Clarence Thomas in 1991. But 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 the founding editor and Kashmir Hill is a co-editor of Above the Law, a legal blog.

Want to challenge everything you think you know? Visit the "Five Myths" archive.

For recent Outlook coverage on the Supreme Court, see Russell Riley's "Behind the scenes of a nomination" (April 25), Jeffrey Rosen's "Barack Obama, Supreme Court justice" (Feb. 14), Christopher L. Eisgruber's "The Highest, Dullest Court in the Land" (July 12) and Peter Winn's "The Education of Sonia Sotomayor" (July 12).

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