The Age Excuse
By far the most common defense of the Kagan pick in our comments sections has been to cite her age. Indeed, several regulars have made the claim that Diane Wood’s age should obviously have eliminated her from consideration. I think this is utterly silly, and is a case in which conservatives are much more savvy than liberals. If you look at life expectancy charts, Wood can essentially expect to live as long as Sam Alito. Does anybody remember Republicans outraged about the Alito pick, urging Bush to pick somebody who didn’t have impeccable conservative credentials so that they could get someone a couple years younger? Neither do I, and in this case the Republicans are obviously right. Within a plausible range of options, the age of nominees isn’t that big of a factor. The key things limiting its importance are that 1)it’s most important that justices be replaced by someone with similar values and 2)there’s a modern norm that justices resign when they can be reappointed by someone congenial. Given these two things, within reason the age of nominees doesn’t make all that much difference. In the most common case, a judge simply resigns and allows a president to pick someone similar who can serve a lot longer.
And even in cases where judges leave under conditions not of their choosing, sometimes it doesn’t matter. Rehnquist passed away in office, but was replaced by a near-xerox anyway (and may have resigned had Bush not been a favorite to win re-election.) Brennan and Marshall were replaced by Republican appointees (one OK and one a very young reactionary), but this just proves that if you don’t win a lot of presidential elections it’s going to be hard to keep ideologically congenial people on the court; there was only a four-year window between 1973 and 1992 in which they could have resigned and been replaced by a Democratic appointee. Black and Douglas left immediately before passing away, but here again it would have been better if they had been a little older, resigned and were replaced by LBJ (especially Black, who got cranky and more conservative in his last decade.) Harlan left under similar circumstances, but since he was replaced by Rehnquist it’s hard to say that this didn’t work out well for the Republicans.
In addition, relative youth is only a significant advantage if it’s clear that a justice will be a reliable vote. Thomas’s youth worked out well for conservatives — but Souter’s didn’t. Since we have no idea whether Kagan will be a reliable vote or not, her relative youth is much less of an advantage. When you combine this with the fact that being ten years younger will only matter in the long-term under a very unusual set of circumstances, the idea that Kagan is a better pick that Wood because she’s younger becomes untenable. Age might matter all things being equal, but that’s not the case here.
I think if you’re talking about age, Karlan, not Wood, is the obvious choice. That’d have been a nice nod to the left.
But nominating a lesbian would’ve amounted to pissing in Ben Nelson and Mary Landrieu’s Wheaties, can’t have that!!
I wonder if the explanation for the nomination is really simple: Kagan is good at convincing people to give her nice jobs. That’s a pretty plausible take of her record. There’s even a propinquity effect (i.e., she does better when participating in institutional life than from afar, which suggests collegiality at work).
In such cases, the determiners are often intangibles (i.e., while we have reasonably objective metrics for her (high) intelligence, they determiner is how she mobilizes that intelligence in collegial interactions (rather than, say, in print)).
Any question you have about Kagan has already been answered by the way you frame this issue: everybody with an opinion must “defend” the pick.
Before there is even a discussion about Kagan, you have shifted the burden, making it so this is the wrong pick unless it can be “defended”.
To be fair, there’s a wealth of previous posts that go into detail why Kagan is a crappy pick if you’re a liberal, so if that’s your problem, I suggest you do a search and go fight in those posts.
Scott had a few that were OK, but not that convincing. Paul posted several piles of crap. At least two sounded eerily like Hillary’s anti-Obama primary hit-pieces (“not enough experience”) while deliberately excluding the fact that the woman is currently serving as solicitor general.
The bottom line is that, if you don’t start from a position that Kagan is an absolutely terrible pick, then there is no reason to “excuse” or “defend” the piece. It’s up to those claiming she is the worst ever to satisfactorily explain why.
claiming she is the worst ever
Who are these people, exactly?
I also note that my appeal for someone to actually defend the Kagan pick on the merits remains unanswered…
“if you don’t start from a position that Kagan is an absolutely terrible pick”
Why is that a bad position from which to start? I’m not going to assume someone I’ve never heard of deserves to be on the Supreme Court just because. If everyone who was nominated deserved it, Harriet Myers would be breaking 4-4 ties.
I’m not sure why anybody should care about the opinion of someone who had never heard of the Dean of HLS and the Solicitor General of the U.S.
taylormattd,
The reason there is any burden of proof is because the nomination process is zero-sum… Obama can’t nominate both Kagan and the best alternative. Many progressives feel that there are great cases to be made for the best alternative(s), and so the choice of Kagan needs defense.
Google “opportunity cost” if you really don’t understand at that point.
In fact, it’s worse than I expressed in my previous comment. Your last two posts on this issue have talked about people needing to defend “excuses” for nominating Kagan.
This is simply because I don’t believe anybody among our commentariat has actually defended the pick on the merits. I don’t think a single person has claimed that Kagan would be a better justice than Wood.
I sure haven’t seen such a defense. If anyone has, please link it for me.
I don’t think a single person has claimed that Kagan would be a better justice than Wood.
Besides Obama, you mean.
The problem here is lack of information. We can evaluate Wood by her published opinions. We have much less to judge Kagan by.
Still, Obama has presumably met with Kagan and Wood (and others), and while we can all assume there are political factors affecting the decision, I don’t think we actually know that. It may well be that Obama and his people really think Kagan is smarter and a better nominee.
If Obama thinks that, on the basis of his interviews and on the reports of those familiar with Kagan, then I am not in much of a position to argue. And it’s not the kind of readily publicized information that bloggers can evaluate.
Do we really think that Obama has a duty to pick a nominee only on the same information available to LGM bloggers and commenters?
… Kagan seems to be the kind of person who smart people talk to, get to know, and then think, “hey, she should be on the Supreme Court!” She may be brilliant, or she may just give that impression. But apparently one or the other is the case.
“Besides Obama, you mean”
When you say this, it really sounds like you are going to provide a link. SO disappointing. I call your bluff, I don’t think Obama ever said Kagan > Wood. He has simply offered Kagan.
Also, Obama’s free pass ended when he didn’t stop torture, and caved on HCR, and abortion rights, and financial reform, etc. If Kagan shares his views, that would be a very bad thing.
Wish we knew!
(I’ve said this before but it alarms me that Republicans nominate blank slates to fool their opponents but Obama nominates blank slates to fool his supporters.)
I am generally opposed to appointing anyone younger than I am to any judgeship of consequence. It limits my own chances.
On the “what-if” machine, what if Abe Fortas had become Chief Justice rather than Warren Burger ? Fortas was recognized as having the most brilliant legal mind in the country, so a Fortas Court could have created a strong intellectual legacy.
But look, people do sometimes die, and even at inconvenient times. I surprised that you haven’t discussed Nate Silver’s post on the age issue, since he showed (I thought convincingly) that even if Kagan is 10% more likely than Wood to side with conservatives in a ruling, her greater life expectancy produces a greater shift toward liberal decisions over the long run. I suppose that if you postulate that Wood couldn’t possibly die or retire inconveniently, that would not be very persuasive, but that doesn’t seem to be a very wise assumption to me.
Plus I really like what Kagan wrote about the Sullivan decision, so I guess I’m history’s greatest monster by extension.
I’m not ignoring the possibility. The problem is that in many cases dying in office wouldn’t mean a worse appointment, and in other cases it would actually be better if a justice had left earlier. IIRC, Nate’s argument only worked if you assumed that Kagan would be replaced by the conservative, and also ignored the possibility that she could have been replaced by a liberal if only she had left earlier. Especially when you combine that with the fact that a majority of modern justices resign at a time of their choosing, it makes age (within a reasonable range) not that important a factor.
Everytime this comes up I have to wonder whether putting this amount of power in the hands of nine unaccountable old people is smart.
Then I remember Bush v. Gore and realize I was wasting my time thinking about it. Of course it’s not. The future of our country literally comes down to whether some old person can go another year without dying.
Their questions on technology and internet law cases do make hilarious reading though. That and the time they Berlusconi’d campaign finance law.
Five justices will be not even retiring age — Thomas around there at that point. Not quite “old,” really.
Let’s remember a majority of the cases involve statutes that can be overridden or fairly minor constitutional issues. Others underline that trusting majority rule to protect our rights isn’t a totally safe bet either.
“Since we have no idea whether Kagan will be a reliable vote or not, her relative youth is much less of an advantage.”
The thing is, once you accept Kagan is unreliable, her entire appeal evaporates. You don’t have to separately address her age… I think you may be creating a bit of a strawperson here; I fear that the age argument is meant to persuade someone who is only a tiny bit reluctant. No one offering this age argument is likely to feel common ground on the Kagan=unreliable equation.
I like your argument a lot better when you flip it around a little: the discussion about her age demonstrates a vast misunderstanding of the depth and the seriousness of the misgivings over Kagan.
(Boy, the nominees here may be lousy but the portions are GREAT!)
I gotta agree with this. Kagan seems to fit the mold of a Clinton-era apparatchik very well. Meaning she thinks gay people are all right but workers’ rights and concerns about corporate power are overrated.
Administrators aren’t leftists. Never have been, never will be.
A Clinton-era apparatchik may well thing gay people are alright, but it’s not clear that they’ll actually sacrifice anything to provide them with civil rights or improve their condition.
Honestly, one of my bigger fears is that Kagan will identify too heavily with the Democratic Party and thus be too centrist. A centrist worried about the Democratic Party’s performance in the next election may be unlikely to recognize that discrimination on the basis of sexuality deserves heightened scrutiny or to strike down a partial-birth abortion law.
Well, I haven’t kept up on the comments, but age is pretty silly. Blackmun was over 60 when nominated and stayed on over twenty years. Twenty years is enough time. And, to replace someone who retired at 90 and not expect her to stay on to at least 80 is curious. But, again, how many “comments” here nixed Wood for that reason? I’m thinking, only a relatively small sample.
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