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
In the first part of my discussion of stealth nominees (which you can find immediately above this one) , I argued that commentators may tend to confuse lack of a "paper trail" with lack of other indicia of a judicial candidate's likely views. For this reason, I do not think that Elena Kagan is a stealth nominee of the same type as David Souter. In this post, I say a few words about the conditions under which stealth nominees might face confirmation problems. I will then point out that these considerations do not apply to Elena Kagan even if one considered her to be a stealth nominee, which, as I have argued, I do not.
Joshua Green's recent article in the Boston Globe about Kagan as a possible stealth nominee makes one minor mistake about David Souter but nevertheless grasps an important point.
Souter was nominated to the court by George H.W. Bush and was thought to possess many of the same qualities that make Kagan attractive. His beliefs seemed squarely in line with his party’s, he was recommended by those familiar with his record as a judge on the First Circuit Court of Appeals, and he seemed a safe bet for confirmation. But Souter proved far more liberal than anticipated.
Souter slipped past conservative gatekeepers because of where he served. The hot-button legal cases that the Supreme Court takes up — on race, abortion, religion, homosexuality — tend to come out of the West (the Ninth Circuit) or the Deep South (the Fifth and Eleventh Circuits). Rarely do they come from the First Circuit in the Northeast. Thus was Souter able to amass a substantial record of legal opinions without revealing his positions on issues that would later divide the Supreme Court. Like Kagan, he was essentially untested on important matters of federal law, and ultimately disappointed the president who put him there.
Souter’s example led to the professionalization of the scouting and nominating process for conservative judges. It’s no coincidence that every subsequent Republican nominee has been a fully credentialed conservative.
Miers is the lone exception. She is remembered as having been uniquely unqualified, but it was as much her lack of a written record that prompted conservatives to turn on her. They feared another Souter.
In fact, David Souter did not have a substantial record on the First Circuit. He served on the First Circuit only from May to October of 1990 before being nominated to the Supreme Court. Rather, he had spent years on the New Hampshire Supreme Court (and before that on the New Hampshire Superior Court), which is why he had relatively few opinions on federal constitutional questions.
But the more important point is about Souter's credentials and the role that perception of credentials plays in shoring up a relatively unknown candidate's chances. Green is correct that conservatives were worried about Meiers' views. But her perceived lack of credentials was not irrelevant to those fears. When a nominee's views on substantive issues are unknown, and their credentials are suspect, the greatest vulnerability comes not from the President's opponents but from the President's own party.
[I]f a nominee is widely perceived as highly qualified, he or she is very likely to be confirmed. The nominee will pick up votes even from Senators who are vigorously opposed to the nominee's perceived politics (as viewed at the time of confirmation). However if the President submits a nominee whose qualifications are in doubt, the nominee quickly begins to lose votes among senators who believe that the nominee's politics are likely to diverge from their own. A nominee who appears unqualified will usually hold onto votes from Senators who believe that the nominee's politics are very close to their own-- ideology trumps lack of qualifications-- but the less qualified the nominee appears, the fewer other senators who will vote in favor. This doesn't matter if a majority of the Senators have the same ideology as the candidate, but that is rarely the case.
. . . .
From this chart you can also see the potential disadvantages of a stealth candidate. By definition a stealth candidate's perceived ideology is fuzzy and uncertain. As a result, more Senators from the President's own party have reason to believe that the candidate's views might differ markedly from their own. That gives them less incentive to support the candidate, all other things being equal. Put another way, the less qualified the candidate appears, the greater the chance that the uncertainty about his or her judicial positions-- the defining characteristic of a stealth candidate-- loses the nominee potential supporters he or she might otherwise have enjoyed. Note that this problem with stealth candidates arises only if their qualifications are in doubt. A nominee like David Souter benefited greatly from his prior judicial experience, his Ivy League credentials, and the perception that he was extremely bright, studious, and able. Indeed the stealth strategy is best designed for situations when the candidate is widely perceived to have strong qualifications. If a stealth candidate's qualifications are clearly excellent, lack of clarity about his or her ideology is more likely to help a candidate than harm him or her, because it greatly increases the chances of support from Senators who suspect the candidate's ideology is quite different from their own.
As you can see from this analysis, Elena Kagan is not in any particular trouble, even if one believed that she is a stealth candidate. Her qualifications are excellent. She is generally thought liberal, although precisely how liberal is subject to doubt. If her views appear uncertain, this helps her with conservatives and blue dog Democrats, and therefore helps prevent a successful filibuster. Lack of clarity about her views might in theory hurt her with the left wing of the Democratic party, but the left wing of the party is not going to sink the nomination of such a qualified candidate. For this reason, there is simply no comparison with the Meiers nomination.