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
I have said previously that Elena Kagan is not really a stealth nominee. Despite her lack of a paper trail in legal scholarship, it's not difficult to figure out that she will be a social liberal who will support Roe, the constitutionality of the health care bill, and executive power. We cannot predict where she will end up many years from now, but that is because we don't know what issues the Court will have to address then. In this respect, she is not very different from many other Justices.
The term "stealth nominee" is often misused. It is sometimes used to refer to a nominee with a limited "paper trail"-- speeches, opinions, and pronouncements. But this is not the same thing as lack of evidence about a candidate's general ideological tendencies. A true stealth nominee is not one with a short paper trail, but one whose history gives no clue as to their ideological and jurisprudential tendencies. (David Souter is closer to a stealth nominee under this definition).
One should not confuse lack of academic writings on subjects with lack of other indicia about a candidate's general sensibilities. These other indicia may be far more important than attempting to parse particular sentences in briefs, opinions, or academic articles a candidate may have made in the past. (For example, lawyers often make arguments they don't believe in order to promote the interests of their clients; judges often make statements that are geared to the precise issue before them, and not generalizable to other questions; academics sometimes make broad generalizations or abstract claims that they would seriously qualify if presented with a real world problem.)
If one looked at John Roberts' and Samuel Alito's biographies, for example, and knew something about the political goals of the White House that appointed them, it would be fairly easy to tell that they would be strongly conservative Justices. Likewise, it is fairly easy to see that Kagan is likely to be a liberal Justice. She may not turn out to be as liberal as Thurgood Marshall, for whom she clerked, but it's important to recognize that the President who is nominating her, Barack Obama, is not the most liberal of presidents either. Moreover, he is continuing many of the policies of the Second George W. Bush Administration (2005-2009) on terrorism and related issues. As soon as you recognize this central fact about the Kagan appointment, the mystery is no mystery at all.
I believe that commentators tend to place far too much weight on academic articles and other statements, presumably because these are supposed to be "objective" indicia or proof of what a person really thinks and will think in the future. What such commentators fail to recognize is that if even if a candidate had a massive paper trail of articles on every subject one could not be sure that she would not change her mind or that she would find what she said previously distinguishable because of changed circumstances. (To give only one (personal) example, a person familiar with my work as of 2005 would have had no idea that I would ever sign a brief arguing for incorporation of the second amendment against the states. Writing a lot about the Constitution does not mean that you will never change your mind. It may sometimes have the opposite effect.)
In fact, I suspect that much of the incessant parsing of statements in confirmation battles is not actually designed to determine what the candidate actually thinks, but rather to do two very different things: (1) to find ways to sink the nomination; or (2) to put political pressure on the candidate and the Administration so that both will understand that there is strong public opposition to deciding a certain matter in a certain way.
For the same reason, the demand for a paper trail is often not so much a demand for clarification of a nominee's views (which can often be guessed by other means), but a demand for evidence that can be used to undermine the nomination or put political pressure on the nominating Administration. Because Administrations don't like to be pressured, and because they don't like their nominations to fail, candidates often lack paper trails. But lack of a paper trail by itself does not necessarily make the candidate's likely views any less intelligible.