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The “Paper Trail” Myth

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Essentially, among people who don’t think that the Supreme Court’s perspectives should range only from “Rockefeller Republican” to “Newt Gingrich Republican,” there have been two excuses for nominating Elena Kagan in a context that would permit a much more clearly liberal nominee. The first of these — age — I’ll leave for a subsequent post. The second is the idea that since all contemporary nominees are blank slates, Obama is just doing what every other modern president does, because candidates with a paper trail are extremely difficult to get confirmed.

In a comment to his (deservedly) widely-discussed post, Paul makes a point in response that shouldn’t be buried:

What “trend” would that be? The trend that put Alito and Roberts and Sotomayor on the Court? Two of those three had long careers as appellate judges and the third was a well-known movement conservative whose political and legal positions were not in any real doubt.

And one can same thing about Breyer and Ginsburg; they both had well-established public views. It’s also worth noting that the only nomination of the last two decades that came close to failing in the Senate — Thomas — involved the candidate with arguably the thinnest “paper trial” among the group between Kennedy and Kagan. (The other candidate is Souter, which is…not a precedent Kagan defenders are going to want to use in any case.) And in addition to this, the nominee with the very thinnest paper trail in this period — Miers — was actually forced to withdraw, and was replaced by a successful nominee whose down-the-line reactionary bona fides couldn’t have been much more clearly established.

Against all of this, I assume Kagan defenders will invoke Robert Bork, who did have a long paper trail and was indeed defeated. But it’s not clear how Bork is relevant to, say, Diane Wood. First of all, Bork doesn’t prove that you can’t be confirmed if you have a paper trail; he proves that you will have a hard time getting confirmed if your paper trail includes stuff like “the 1964 Civil Rights Act is unconstitutional” and “free speech is a ‘gratification’ in most cases deserving no special protection against the powers of the majority.” So, yes, if you express views that are well outside of the mainstream of what either party is currently willing to defend publicly, having a paper trail is a problem. But this isn’t going to apply in most cases. And even in this relatively extreme case, Bork’s defeat was highly contingent — on Reagan waiting until the Republicans lost their Senate majority to nominate him, and on many of the crucial votes in the Senate being conservative Southern Democrats who couldn’t vote for someone with Bork’s record on civil rights.

So, anyway, the “paper trail” argument is a lousy justification for nominating Kagan. Even since the failure of the Bork nomination, a majority of candidates have had a substantial paper trail and all of these have been confirmed. And of the three possible exceptions, one was nearly rejected, one was forced to withdraw, and one demonstrates that blank slate candidates carry a very substantial downside risk.

…while it hasn’t really been made by her defenders here, Joe is right to note in comments that there’s a third justification: that she’ll able to use her faculty-management skills to persuade Anthony Kennedy to switch sides in some close cases. If anything, I think this argument is even worse than the other two, but it is out there.

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