Wednesday, May 12, 2010

Elena Kagan's first (and extremely important) decision

Sandy Levinson

There is a widespread, and thoroughly correct, perception that the Senate confirmation process (like so much else in the Senate, but I digress...) has become a scandal, though part of the scandal, of course, is the unwillingness of any nominee since Robert Bork to engage in a truly serious conversation with the senators (assuming, generously, that any of them is interested in such a conversation). Both Chief Justice Roberts's and Justice Sotomayor's performances were especially disgraceful because it is literally impossible to believe that two such accomplished and intelligent people could possibly have believed what they were telling the Senate. If Clarence Thomas should have been denied confirmation because of suspicions that he commimtted perjury when he denied ever having a conversation about Roe v. Wade, then one could make an even stronger argument with regard to the idiotic "umpire calling balls and strikes" proferred by the Chief Justice and the "empry vessel of the law" posture taken by Sotomayor.

As everyone now knows, Elena Kagan is fully aware of this scandal, having written about it in a 1995 review of Steve Carter's The Confirmation Mess. Linda Greenhouse had a typically acute column in the Times pleading with Kagan to answer the questions asked her, save for (relatively few) that would be clearly inappropriate.

So Elena Kagan's first decision is whether she will reinforce two truly terrible realities of our modern confirmation system: a) to put herself in the control of a "handler" who will, almost inevitably, give rotten advice with regard to serving the country, even if, by stipulation, the advice makes sense from a short-run perspective of gaining confirmation. Clarence Thomas, who is in fact a very able and interesting justice (whom I most often disagree with), was fatally disserved by his "handlers" who encouraged him to portray himself as an empty-headed fool who renounced anything he had ever written prior to his nomination. b) to accept the advice to stonewall the Senate (and the American people) by giving answers that no serious person, especially a veteran of such intellectual hothouses as the University of Chicago and Harvard Law Schools could possibly believe.

Forget he idiocy of asking her about specific cases. Instead, she should be invited to assess Richard Posner's portrayal of the Supreme Court in the 2005 "Foreword" to the November issue of the Harvard Law Revie, for starters, in which he portrays the Court as a thoroughly political institution (and he is not being critical). Posner is surely the only judge who's ever written a major book entitled "Overcoming Law," another book much worth discussing, as are recent books written by such denizens of the Harvard faculty as Laurence Tribe, Charles Fried, Adrian Vermeule, Mark Tushnet, and Jack Goldsmith, the last three of whom were hired during her Deanship. Or she could be asked to discuss Bruce Ackerman's Holmes Lectures, which were reprinted in the Harvard Law Review.

What I find dismaying is not only the possibility that Kagan will choose to replicate role models that she herself correctly exposed as deeply flawed. It is also the fact that most of my colleagues, I have discovered, think this is the "correct strategy," given the propensity of mad-dog Republicans to look for anything and everything that would throw stumbling blocks in front of her taking her seat quickly so that she begin doing the work she is so ably equipped to do. No one has any respect for the confirmation process or any belief that it could in fact serve as a vehicle of public education. Instead, everyone believes that it is completely broken, needs fixing, but that, practically speaking, nothing is to be done about it because everyone's short term interest is to continue pretending that it is worth respecting.

So my hope is that Elena Kagan, whom I deeply admire, will "just say no" (or, more fittingly, "go fuck yourself") to Rahm Emanuel when he suggests that she serve Team Obama by emulating John Roberts and Sonya Sotomayor and their utterly dismaying performances, whatever the costs to the integrity of our constitutional system or, indeed, to her own self-respect.


How would Kagan's candor fix the system? If I understand what you have in mind it would most likely lead to her nomination not being confirmed.

Why would intellectual honesty, including a recognition that the tooth fairy and Easter bunny are fictions, albeit pleasant ones, necessarily block her confirmation? Robert Bork wasn't stopped merely because he was honest; rather, a whole lot of people genuinely were appalled by what they heard.

Candor wouldn't "fix" the system, but it would be a start. Otherwise, we will develop greater (and justified) contempt not only for the system in the abstract, but also for individuals who are otherwise quite admirable (like Justice Sotomayor).

Since conservatives are falling over themselves praising her (including Miguel Estrada, who Republicans still use as a martyr / victim of Dems in the confirmation wars) and Dems surely won't vote against her, her nomination in the long run seems assured, after the usual dance.

I realize her actually showing some candor, some will say why would she now, could change things, like any revolutionary event. But, what's the value of defeating her nomination? Why poke the bear? Obama can actually nominate a stronger liberal. Kagan is no Bork, after all, or even a Scalia. She more akin to a Kennedy or let's say a Breyer, who she quotes in her "presidential administration" article.

But, things aren't looking up for clarity here.

A comment on Greenhouse's op-ed. Is the Buono case "over and done with" or was it just sent back, with a chance of it coming back?

Sadly, it seems people are even more easily appalled now than when Bork was nominated. Reasonable views perceived to be of the wrong stripe are enough to spawn a movement to block a nomination (which is what Bork's supporters believe happened to him). I agree the process is pretty poor, but it will have to be fixed before nominees can risk being forthcoming.

I think the current pressure on the opposition party to provide some sort of resistance to anything the dominant party does has more to do with the problem than any actual divergence in values.

On the topic of Supreme Court justices, you can get your own Green Bag Justice Scalia Bobblehead, and contribute to a worthy cause.

It would be intellectually interesting if the senators and the nominee discussed jurisprudential issues at a reasonably high level. Posner's "Foreword" could be a vehicle for such a discussion; there could be others. But I see several problems here:

1. Essentially no senators are intellectually qualified to engage in such a discussion. Even the ones who are "smart" in some sense of the word are not smart in that way. If they were, they would not have gotten into their current line of work.

2. Almost no one in America, other than a few law professors and maybe some judges, would be interested in such a discussion.

3. Such a discussion wouldn't be useful, because there isn't a set of jurisprudential beliefs held by Kagan or any other actual nominee that would be disqualifying. I mean, conceivably a Catharine MacKinnon or Duncan Kennedy could say something about law as legitimating device for the male sex/ruling class that would disqualify them, but people like that would never be nominated in the first place.

Personally, I don't find the rituals of abasement and pious humbug that high officials are required to undergo in America to be too troubling. It reminds the fortunate and powerful that here the people rule.

Sandy Levinson said...

Why would intellectual honesty, including a recognition that the tooth fairy and Easter bunny are fictions, albeit pleasant ones, necessarily block her confirmation?

If Kagan was candid and expressed the standard POV of legal academia that courts should evolve the Constitution regardless of what it actually says, she would lose in a rout. Instead, as did Sotomayor, Kagan will most likely pretend to be the next Scalia dedicated to enforcing the law as written.

per Sean

[1] Unsure about that. Quite a few politicians also have some basic ability to discuss legal and constitutional issues to a required degree. Some were prosecutors, JAG officers, or even state judges. A few even were federal judges at some time. Some politicians became federal judges.

Also, that is what staff is for as is the case for any number of issues substantively discussed at hearings.

[2] Unsure why that matters. How many actually watch any number of hearings in Congress in the first place, anyways? Second, I think it exaggerated. A decent number of people watch legal related discussions on C-SPAN and debate them online. Finally, it need not be overly erudite or anything to be better than it is now.

[3] It isn't necessarily a matter of "disqualifying" per se but a real discussion of whom is being chosen in the first place to decide important legal questions for decades. In fact, some will find such discussions resulting in some unfit nominees.

As to your last point, if the "people ruling" involves the need to speak in pious platitudes and put on a show, the people are trading their sovereignty for Esau's pottage.

Here's a modification of our former backpacker's closing sentence in his recent comment:

"Instead, as did Sotomayor, Kagan will most likely pretend to be the next Scalia pretending to enforce the law as written." [See his dicta in Heller.]

As to the "standard POV of legal academia," when were Randy Barnett and his ilk of originalists outed from the academic ranks? Maybe Randy et al are just lost in their efforts to restore the (allegedly) lost Constitution. (Sen. Byrd keeps a copy in his jacket.)

I think there is much in the current state of the nomination hearing process which differs extensively from earlier times, as prof. Levinson observes.

Perhaps, as some contributors up-thread appear to suggest in varying degrees of stridency, the constitution ought not to have changed a whit.

Perhaps, as some recently ex colonists in the early days of the US might have averred, information about qualifications ought to be assessed by well educated and well spoken representatives of the people.

However, the communications era is upon us. Disinformation, propaganda, and obstruction all quickly are dispelled and revealed for the deflections they are if one has a computer and examines the web for ellucidation.

How to keep the senate from diluting the meaning of the process of vetting nominees now is a broadband, modern problem.

Ongoing difficulties for the tabloid logicians, including a few of their spokespersons up-thread, is how to arrive at some concordance between this expansion of communications, the breadth of education and professional opportunity for women and "minorities" in our times, and the fictions the obstructionists would like to foist upon the public in the name of constitutional orthodoxy as crocodile tears of angst are shed at nomination hearing time.

"pretend to be the next Scalia dedicated to enforcing the law as written"

As Shag points out, you left out a "pretend." The way Scalia wrote the preamble of the Second Amendment out of existence while giving a lecture on original intent was hilarious. Like most other justices, if he wants an outcome badly enough, he finds a way to get it, text, precedent and logic be damned. (Cp Bush v Gore.)

I'm responding to this post and Prof. Levinson's comment on the previous Kagan item.

What bothers me most is the essential dishonesty of the presentation of Kagan as a candidate. It seems quite clear that she is being picked because she is (i) a battled-tested, essentially Democratic political operative, and (ii) likely to be left enough for liberals without being too far left to be confirmed I think the efforts to reinvent her as an influential scholar, or to suggest that she is really a moderate because she hired some conservatives at Harvard, are just not very convincing

I would be amazed if she says anything but the absolute minimum at the hearings and would be equally surprised if she isn't confirmed on this basis

Shag from Brookline said...

As to the "standard POV of legal academia," when were Randy Barnett and his ilk of originalists outed from the academic ranks? Maybe Randy et al are just lost in their efforts to restore the (allegedly) lost Constitution. (Sen. Byrd keeps a copy in his jacket.)

Standard POV does not mean universal POV. You can count the number of original meaning or other sorts of originalists posting here on one hand. (I do not count Jack's exercise in generalizing the Constitution's text until it is nearly denuded of meaning as a legitimate form of originalism.)

As to Prof. Barnett's place in legal academia, your term "ilk" probably speaks for many in legal academia. The term gadfly seems more apt to me.

Let's be clear, our former backpacker used the phrase "standard POV of legal academia" in an earlier comment that I had responded to. Our yodeler provided no definition of this phrase. In a subsequent lame explanation, he states: "Standard POV does not mean universal POV." But this fails to define what indeed his phrase means. Perhaps we should apply "original intent" by trying to read his mind that is so heavily weighted with the contents of his now abandoned backpack of lies. Perhaps at this Blog few posters can be described as "originalists." But go to Volokh Conspiracy and other blogs; or go to SSRN to check out the legal academia originalists posting articles - they are quite extensive. One can peruse Larry Solum's Legal Theory Blog for his postings on law review/SSRN articles by legal academists who self describe as originalists. As to "ilk," I refer to extreme originalists like Randy Barnett, although our yodeler's use of gadfly may better apply to Randy's commerce clause views, especially since his efforts with Gonzales v. Raich blew smoke back in his own face.

The US confirmation process seems to have come to a point where the answers mean nothing more than the questions.

The playing field is the property of the questioners who tilt and twist it to random, self-serving ends.

How could this possibly impose on a nominee, whose duty surely is to be confirmed, some other responsibility to repair shameful and contorted farce?


Questions should be posed to Elena Kagen in the following format:

During X's confirmation, I asked X the following question Q. How would you respond to that question?

If you pose questions in this format, then her responses become more meaningful. You can compare transcripts of her nomination to past nominations to compare judicial philosophies. Even her evasions will be more meaningful; the basis she supplies for refusing to answer certain questions can at least be compared to the evasions of past supreme court nominees.

A side note: Jack's recent posts and other posts with comments turned off have been cross-referenced at Open Balkinization.

You know, I think Bart is sort of right. As silly as it is, any frankly purposivist/living constitutionalist remarks probably would make her confirmation difficult, if not endanger her confirmation. The public, especially the Republican half of the public, holds some pretty naive views about the law, and saying anything other than "I just read the law and see what it says and call the balls and strikes, etc." probably would raise some serious hackles.

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