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.
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.
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).