Is Kagan the Democratic Roberts?
Responding to attempts to analogize Elena Kagan to Harriet Miers — which are certainly problematic in several respects — Matt analogizes Elena Kagan to John Roberts. I think this analogy, however, is at least equally problematic. First of all, Roberts did have a judicial track record in the federal appellate courts. But even more importantly, orthodox Republican conservatives in the post-Reagan era are a lot more ideologically homogeneous than mainstream elite Democrats. As Matt reminds us by bringing Larry Summers into the discussion, elite mainstream liberalism encompasses a fairly wide variety of views, not all of them very attractive or progressive. Maybe Matt thinks that a moderate, largely pro-business, squishy on civil liberties justice like Stephen Breyer is good enough in the context of a soon-to-vanish 59-41 majority with another appointment almost certainly pending next year. I don’t. And while Kagan could turn out to be better than Breyer, she could also be worse; we have no idea. And that’s the problem.
In a context in which a more accomplished and more clearly liberal justice could be confirmed, the pick just can’t be defended.
I just noted this on an earlier thread, but it belongs here, too:
Jeffrey Rosen was just on NPR with the “Democratic Roberts” line. His version was even sillier. Rosen claimed that Roberts was serious in his confirmation hearings when he expressed a desire to bring left and right together on the Court as Chief Justice. But, Rosen says, he has unfortunately been unable to do so despite his best efforts. Kagan wants the same thing, says Rosen. Perhaps she will succeed in this noble goal of bipartisanship!
Rosen even read Roberts’s testy questioning of Kagan as Solicitor General through this lens: perhaps, Rosen said, he feels threatened by someone who may realize his dream some day….or maybe he just enjoyed sparring with an intellectual equal.
Just be clear, that “intellectual equal” alternative was also Rosen.
From what I’ve read, Justices, “left” and right, have been rather underwhelmed by Kagan’s performance as Solicitor General.
hi im sorry
The great ideological divide in contemporary jursiprudence is between the kooks and cranks of the Federalist Society on the one hand, and on the other, the mainstream defenders of the existing order established during the New Deal and continuing through the Warren and (to some extent) Burger Courts.
Kagan’s record is more than ample to determine where she stands with respect to the great divide–she stands with the mainstream, and not with the rightist kooks and cranks.
Maybe you can find someone farther left than Kagan, but I’m hard pressed to identify an issue on which having the occupant of the Stevens seat be somewhat farther to the left would make a difference in the outcome.
I think you’re basically right, and that’s why I am willing to have faith that Kagan will be a perfectly ok Justice.
But, even accepting that a person with a real fiery liberal paper trail couldn’t get confirmed, why is it not possible to nominate someone who has actually spent some portion of her/his career representing human beings? Shouldn’t that be the Democratic analog to Chief Justice Roberts – someone who split her/his pre-bench career between government work and representing people? If the Supreme Court had three or four of those people, decisions on statutory/procedural issues would start looking very different, I think.
John Roberts sat on an appellate court for all of two years. That brief of a tenure is not even worth bringing up in this discussion.
I’m essentially with Scott on this. But on the narrower issue of a slim judicial track record, I much more sympathetic to Sam’s position. I’m not all that enamored with long-term judicial experience (much less appellate court experience) as crucial training for the SC. I too desire a paper trail to suss out perspective/ideology, but I like the idea of a career in some sort of public service responsive to significant numbers of citizens. But at the end of the day, a much more liberal candidate could have been nominated and confirmed. Too bad.
From the little we know so far about Kagan, she looks to me a lot more like the Democratic David Souter. Heck of a gamble, if you ask me.
I basically agree with Matt’s take. And I’m willing to bet that if there’s one thing Kagan isn’t, it’s a Souter. Both parties learned a lesson from his career, and to the extent that the SC is–I think unfortunately–a crucially important political player in either advancing or blocking particular ideological movements across the landscape, than lesson is an almost wholly negative one: don’t nominate someone who has demonstrated or who has had experiences which might well have involved broad, variable, encounters with the law, nominate someone you can personally, intimately vouch for. The SC nomination process has become about advancing key ideological players through fairly narrow windows of opportunity; Kagan fits that model (as did Roberts) marvelously.
Interestingly what this amounts to saying is that outstanding state court judges are too big a gamble to be nominated. Maybe so, but if so it’s too bad.
I agree it’s too bad; like Matt said, I think the system of appointments as it has evolved is pretty silly. If you’re going to view (and, unfortunately I think, you necessarily these days have to) the SC as highly charged political appointment, then drop with the bipartisan guess-work, slap some term limits on these people, and find the best liberal/conservative/whatever you prefer. But since we appear bound to continue–by the fact that justices are appointed for life, among other reasons–to insist on pretending that these aren’t highly charged political appointments, then finding people who can make the appropriate signals in private but which publicly have very little meat which your opponents can go after is the way to go.
How does Alito fit into this framework? I don’t think his record left the slightest doubt that he was a down-the-line orthodox reactionary.
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That’s a good observation, Scott. I don’t know. Brien may be right that the post-Souter pattern which, I think, has guided Matt’s thinking is entirely based upon Clinton’s and Obama’s thus-far picks. Except that, arguably, it holds for Bush I’s pick of Thomas as well.
How? Bush needed a Black conservative and found one.
I don’t think that Obama would have had any problem getting Wood through confirmation if he’d wanted to. I just don’t see this as an appointment of necessity.
Obama wants Kagan because he wants Kagan. And I assume he wants her because she shares his constitutional views. More’s the pity.
And that really is the bottom line: electing center-right presidents because they are the less bad viable choice on the November ballot than their far right opponents makes sense (I voted for Obama and I’m glad I did). Expecting them to govern remotely like progressives without vast pressure from the left is foolish.
But of course, it would be just fine if Kagen turnd out to be David Souter, who after all, was a member of the Court’s “liberal” wing despite his conservative Republican antecedents. What your worried about is that she’ll turn out to be the opposite of Souter: more rightwingnut than the president evidence suggests.
Our side being the defenders of conventional jurisprudence, our appointees are less likely to turn out unexpectedly hostile to our positions that the other side’s–it’s easier to be surprisingly conventional than surprisingly radical.
Are there any examples of “reverse-Souters?” That is, justices who were thought to be solid liberal votes who turned out to be raging reactionaries or drifted significantly right-ward over time? I don’t mean that rhetorically, I really can’t think of any, and wonder if anyone else does.
White and Frankfurter…
Different times, though. When judges turn out different than expected, it’s only natural that they turn out to be more moderate and less radical. Back in the days of White, and even more so in the days of Frankfurter, “moderation” and “radicalness” went in different directions than they do today.
Kagan was submitted to the Senate as a late-term Clinton pick for DC Circuit Judge… and was denied the opportunity by Republicans. That spot would eventually go to John Roberts.
So, if you had your way, we would in effect be punishing Kagan for having been blocked by the GOP. Because but-for their preventing her being placed on the bench, she would as of now have an entire decade worth of jurisprudence to back her up. For this reason I don’t think that argument has much meaning or impact. We can’t let Republican obstruction dictate whom we choose as candidates for these positions.
It’s not a question of “punishment.” Nobody’s entitled to a spot on the Supreme Court, and what matters is what’s good for the country, not what’s good for Kagan. (I also note again that her lack of judicial experience wouldn’t be an issue for me if we had some idea what to expect from her as a judge, other than that she should be at least as liberal as Larry Summers.)
“At least as liberal as Larry Summers.” Ouch. That does it for me.
of course she’s not entitled to the job, no one said that including myself. my only comment is that your view that she compares negatively to Roberts because Roberts was actually a judge is without much moral force, as the primary reason she wasn’t a judge was obstruction by the GOP.
And I’d add that she was blocked primarily because she was clearly a potential Supreme Court nominee. So again, we can argue about whatever problems there may be, but the problems are systemic.
Earl Warren was never a judge.
Brennan was a state judge.
Brandeis was never a judge.
Hugo Black was never a judge.
Now it is true that all of them had huge careers, and equally huge paper trails, before their appointments.
It was a different political world. I can’t think of any recent governor who is qualified for the court, or whom I’d like to see appointed.
You know what? For those who remember her, Barbara Jordan would have made a hell of a Supreme Court Justice.
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