an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Back in April I predicted that President Obama would pick a nominee who would "support . . . the constitutionality of the recently passed health care bill, preserv[e] . . . Roe v. Wade (as modified by Casey), and support . . . robust (but not necessarily unilateral) Presidential power in surveillance, detention, military commission, rendition, and other war on terror issues." I then concluded
Who would be most likely to satisfy these criteria? One possibility would be someone who had served in the executive branch (and thus is predisposed to Presidential assertions of power) but is a also social liberal who believes in robust federal regulatory power. You do the math.
I left the conclusion to the reader, but if you pick the youngest person from the publicly circulated short lists who best fits these three criteria, you get, mirabile dictu, Solicitor General Elena Kagan. Surprise, surprise.
Does this mean that Obama couldn't have picked someone else? Of course not. But the probabilities were always high that someone who fit these criteria would be appointed, and the President no doubt wanted to select someone who would serve for a long time, which counseled a younger nominee.
Political considerations also matter. The President currently has 57 Democratic votes (along with 2 independents) in the Senate. If Justice Ginsburg retires after the 2010 election, he might have only 51 to 53 votes. That would require him to adopt a candidate perceived (and I use that term advisedly) to be a bit more moderate, perhaps someone like Merrick Garland (who also fits the three criteria but is a bit older than Kagan). If Justice Ginsburg retires there would also be political pressure on the President to nominate a woman to replace her. By nominating Kagan now, Obama has greater leeway to pick a man or a woman for the next appointment as the political needs of that moment dictate.
Liberals and conservatives alike are worried about Kagan's politics once she becomes a Justice. They are poring over her body of legal writings, scrutinizing elements of her career, and psychoanalyzing her from a distance. Journalists are busily constructing a story of her life to make her accessible to the general public, while her political opponents try to engage in various forms of character assassination or, at the very least, a death by a thousand cuts.
I find all of this dreary and tiresome. Apparently, however, it is how we have to do things these days. I can only express my sympathy (perhaps even empathy-- that forbidden word in discussions of the federal judiciary!) for the gauntlet that she will now have to run.
Elena Kagan is hardly a stealth nominee. She has worked in two Democratic administrations and been the Dean of a major law school. If you can't figure out her general sensibilities, you really haven't been trying very hard. It is true that we can't know in advance what she will do precisely in the October Term 2019, but that is true even of Justices with far more elaborate paper records.
Elena Kagan will be a fine Justice, and in time the equal, I fully expect, of anyone currently sitting on the Court. There is a long history of people who had not previously served as judges-- but had served in the executive branch--being appointed to the Supreme Court. Does anyone today think William Rehnquist and Byron White were unqualified when they were nominated to the Supreme Court? I will concede, however, that Whizzer White in his prime could probably score more touchdowns than either Rehnquist or Kagan. Indeed, I'm sure White could outrun Roger Brooke Taney (a former Jackson attorney general), Robert Jackson (a former Roosevelt Attorney General) and Stanley Reed (a former Roosevelt Solicitor General) in the 40 yard dash. Come to think of it, holding three legged sack races for prospective nominees would probably be more dignified, and more intellectually engaging, than what we put them through nowadays.