Thursday, May 21, 2009

Elena Kagan and the z-axis

David Stras

A few days ago, Jan Crawford Greenburg had an interesting post on her Legalities blog regarding the political calculus for a White House looking to making a Supreme Court appointment. “When selecting a Supreme Court nominee,” Greenburg writes, “[o]n the x-axis, you measure how closely the nominee fits with what you want in a Justice,” and “on the y-axis, you measure how easily the nominee could be confirmed.” Of course, the optimal point for a nominee, Greenburg opines, is the upper right quadrant of the graph where you are essentially a judicial rock star who can be easily confirmed. Applying those criteria, Jan views Elena Kagan as the front-runner to replace the retiring David Souter.

I tend to agree with Jan that if I were to bet on a nominee at this point to replace Justice Souter, it would be Elena Kagan. I think that Kagan can be confirmed more easily than either Wood or Sotomayer (though Wood is likely confirmable too given the current composition of the Senate), and she likely fits the criteria the Obama administration is looking for in a nominee. I say “likely” because it is not even clear to me what judicial qualities Obama is searching for in his nominee. Even if one assumes that “empathy” is the predominant criteria for Obama’s nominee, which I highly doubt given the importance of qualifications and ideology in the selection process, empathy is not exactly a term that precisely describes a judicial philosophy. Phrases such as “strict constructionist” or a nominee with “empathy” are useful to sell a nominee to the public, but are not very helpful in defining the contours of a nominee’s judicial philosophy. But I digress and that is the subject of a post for another day.

While I often find Jan’s posts interesting and helpful, the axes in her graph are underinclusive. If I were to add a third axis to make the graph three-dimensional, it would undoubtedly include a nominee’s ability to influence and move the Court, particularly the median Justice. To paraphrase Justice Brennan, understanding the Supreme Court is all about counting to five and a Justice that can build coalitions and persuade colleagues is at least as useful to a President as a Justice that perfectly mirrors a President’s ideological preferences, particularly when it involves a nomination that will do little over the short term to alter the ideological balance of the Court. During October Term 2006, Justice Kennedy was in the majority in every one of the Term’s 26 5-4 decisions. Those 5-4 decisions constituted nearly one-third of the Court’s plenary cases from that Term. In other words, a Justice that can even moderately influence Justice Kennedy (or a future swing Justice) can have far more influence than one who merely votes the President’s ideological preferences without engaging with colleagues.

The problem with that third axis, or to use Jan’s terminology the z-axis, is that it very difficult to assess whether a new Justice can be successful in moving the median. No doubt a motivating factor behind the nomination of John Roberts as Chief Justice was the hope by the Bush administration that Roberts’ strong intellect and collegial behavior would help build lasting coalitions on the Court. In that regard, Roberts has only been moderately successful. While his first Term on the Court resulted in a number of unanimous opinions, the addition of Alito and Roberts has not really pushed the median of the Court to the right, at least as much as many people thought they would. On the other end of the spectrum, the papers of a number of Justices reveal that Justice Brennan was particularly effective at building coalitions, even when the majority coalition issued an opinion that was not in line with Brennan’s ideal policy preferences. I doubt seriously that any of the people involved in vetting the nomination of William Brennan from the Eisenhower administration anticipated in advance his uncanny ability to build coalitions on the left. Thus, it is very difficult on an ex ante basis to predict a prospective Justice’s ability to influence colleagues and move the Court. Perhaps it is even more difficult than anticipating ideological drift, a subject about which fellow Balkinization blogger Lee Epstein has written extensively.

Nonetheless, the reason why I believe that Elena Kagan makes the most sense for the Obama administration is that she does well on the two axes identified by Jan Greenburg, but also potentially excels on the z-axis in her ability to build coalitions on the Court. From all accounts, Kagan did a superb job at Harvard Law School as Dean and pleased both conservatives and liberals alike with the moves she made during her tenure. In a recent article by David Savage and James Oliphant, Harvard Professor Charles Fried described Kagan as the “really outstanding” potential nominee among his choices because “she respects everyone and makes the conservatives feel comfortable.” Other conservatives also lined up to support Kagan during her confirmation hearings as Solicitor General.

There are certainly reasons not to nominate Kagan. For one thing, she is not a sitting appellate court judge, though I think that the emphasis on prior judicial experience is seriously overblown and unnecessary. Second, she does not have a great deal of litigation experience, particularly before the Supreme Court, but that did not seem to harm her in her confirmation as Solicitor General where arguably prior litigation experience is even more important than as a sitting Supreme Court Justice. Third, she has backed off considerably from the position she took in a 1995 article from the University of Chicago Law Review where she powerfully argued that nominees should answer questions that reveal their “substantive views.” As we have witnessed over time, inconsistency can create difficulty for a nominee. I am sure that there are other potential stumbling blocks to her confirmation, but on all three axes, Kagan seems to do better than the other short-listers and thus in my mind is the leading contender for Justice Souter’s seat. She certainly
would not be my personal choice for a nominee to the Supreme Court, but she may well end up being Obama's.

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