Why I'm Guessing Obama Will Nominate Elena Kagan:
I've been writing for a while that I would guess Barack Obama will nominate Elena Kagan to the Supreme Court to replace Justice Souter, especially over leading short-listers like Sonia Sotomayor. I thought I would blog a bit more about why I'm guessing that.
As I see it, it seems likely to me that Obama will want to nominate someone who could be a charismatic leader for the liberals on the Court. That's true for three reasons. First, Obama is a very popular new President who will have 60 votes in the Senate, so there isn't the usual political reason to pick someone more modest or centrist. Second, Obama is a former law professor and former President of the Harvard Law Review: In those circles, the more lawyerly liberals (the bean-counting, move-left-small-step-by-small-step kind) are at best compromises. Third, based on his first 100 days in office, Obama seems to like bold action if he can take it.
Given these three factors, I suspect Obama would want to nominate someone who will change the ground game at the Court. The idea would be to broaden the range of viewpoints on the Court and shake things up a bit. I think this environment tends to favor someone who is known as extremely smart, charming, and without the baggage of a lot of judicial experience coloring between the lines as a lower court judge. I think Kagan best fits the bill for this. I should add that I don't actually know what positions Kagan would take; her relevant public record is sparse. I just expect that she has the smarts, energy, charisma and perhaps inclination to shake things up a bit.
Those who expect Obama to pick Sonia Sotomayor focus a lot on the fact that she is Hispanic. That is true. At the same time, I would think the current political climate doesn't make that as relevant as it could be. Obama enjoys an incredible 85% approval rating among Latinos, and Obama is only 100 days into his first term. Obama doesn't need to pick a Latino replacement for Souter to keep people on board: it's not like mass numbers will defect to vote for Sarah Palin in 2012 if Obama nominates someone else. Plus, by the time Obama is running in 2012, his 2009 pick will have had 2-3 years to prove herself as a solid liberal vote. So under the circumstances, I see the race question as less important to Obama than it could be.
Finally, some commentators suggest that it would make no sense for Kagan to be nominated so soon after being confirmed as SG. I disagree: I think the timing is perfect. Kagan just went through the confirmation process a few months ago, and everybody knew it was a trial run for a possible nomination for the Supreme Court down the road. No major hurdles or issues emerged, and Kagan was easily confirmed. With the dress rehearsal having gone smoothly, it makes it easy for Obama to nominate Kagan again, this time to replace Souter.
That's my thinking, anyway. Obviously, this is all sheer speculation based on no insider information at all. But that's my best guess.
UPDATE: I have altered the post a bit to make it clearer. To elaborate a bit, I don't actually know the specific positions Kagan would take; her record is sparse. What I was trying to identify was more of an energy and direction than a particular set of positions. I also, I took out the phrase about whether there has been a Hispanic Justice before, as it immediately drew about 10 commenters who wanted to discuss Justice Cardozo; obviously that's not the point of the post.
As I see it, it seems likely to me that Obama will want to nominate someone who could be a charismatic leader for the liberals on the Court. That's true for three reasons. First, Obama is a very popular new President who will have 60 votes in the Senate, so there isn't the usual political reason to pick someone more modest or centrist. Second, Obama is a former law professor and former President of the Harvard Law Review: In those circles, the more lawyerly liberals (the bean-counting, move-left-small-step-by-small-step kind) are at best compromises. Third, based on his first 100 days in office, Obama seems to like bold action if he can take it.
Given these three factors, I suspect Obama would want to nominate someone who will change the ground game at the Court. The idea would be to broaden the range of viewpoints on the Court and shake things up a bit. I think this environment tends to favor someone who is known as extremely smart, charming, and without the baggage of a lot of judicial experience coloring between the lines as a lower court judge. I think Kagan best fits the bill for this. I should add that I don't actually know what positions Kagan would take; her relevant public record is sparse. I just expect that she has the smarts, energy, charisma and perhaps inclination to shake things up a bit.
Those who expect Obama to pick Sonia Sotomayor focus a lot on the fact that she is Hispanic. That is true. At the same time, I would think the current political climate doesn't make that as relevant as it could be. Obama enjoys an incredible 85% approval rating among Latinos, and Obama is only 100 days into his first term. Obama doesn't need to pick a Latino replacement for Souter to keep people on board: it's not like mass numbers will defect to vote for Sarah Palin in 2012 if Obama nominates someone else. Plus, by the time Obama is running in 2012, his 2009 pick will have had 2-3 years to prove herself as a solid liberal vote. So under the circumstances, I see the race question as less important to Obama than it could be.
Finally, some commentators suggest that it would make no sense for Kagan to be nominated so soon after being confirmed as SG. I disagree: I think the timing is perfect. Kagan just went through the confirmation process a few months ago, and everybody knew it was a trial run for a possible nomination for the Supreme Court down the road. No major hurdles or issues emerged, and Kagan was easily confirmed. With the dress rehearsal having gone smoothly, it makes it easy for Obama to nominate Kagan again, this time to replace Souter.
That's my thinking, anyway. Obviously, this is all sheer speculation based on no insider information at all. But that's my best guess.
UPDATE: I have altered the post a bit to make it clearer. To elaborate a bit, I don't actually know the specific positions Kagan would take; her record is sparse. What I was trying to identify was more of an energy and direction than a particular set of positions. I also, I took out the phrase about whether there has been a Hispanic Justice before, as it immediately drew about 10 commenters who wanted to discuss Justice Cardozo; obviously that's not the point of the post.
1. Why do you think Elena Kagan would make a "liberal lion"-type Justice? Yes, she's young, smart, and motivated; and yes, she clerked for Marshall. But her background is one of a moderate-liberal. She was in the Clinton White House. She's an admin law scholar, who are generally on the more incremental side of liberalism and more concerned with minutiae than sweeping reform (think Breyer, Sunstein, etc.) She accommodated/welcomed conservatives and conservative views at HLS. Even on the hot-button of gays in the military, while Kagan gets roasted by the far-right for attacking the Solomon Amendment, Kagan actually took a lot of heat from the HLS gay community for acceding to it once it was upheld (instead of forgoing funding).
I guess I'm just wondering what affirmative proof you have that she would "take positions more aggressive than the current set of liberal justices"?
2. Kagan got some pushback during her SG confirmation process for having no experience as an oral advocate. You don't think this will come up again -- not just that she has no judicial experience, but that this is now happening for the second time in a few months? (Not that I think this would disrupt the confirmation process, but I question whether it won't be any issue at all.)
From the post:
This.
Diplomacy is a highly undervalued skill in an appellate judge. That seems to be a strong suit with her, which to me is a significant plus in support of her nomination.
Oh. But, um, wasn't that the whole point of the post? That Obama would seek "bold action", take an "aggressive stance," "swing for the fences," and nominate a "'liberal lion,'" someone who will "change the ground game"?
I realize one can't predict what positions she would actually take. But without any past examples, you could substitute anyone who is young, energetic, and well-known in the academy, and the post would be the exact same. I mean, Harold Koh fits your description far more than Elena Kagan.
[OK Comments: Terrivus, I have changed the post to clariy in response to your concerns. Please read the new version of the post.]
I agree in part with the comment above -- what evidence is there that she might be a liberal lion? (I agree she'd be good at the job, but that isn't the question.) Besides, she has a pretty conventional background as far as I know. Judge Sotomayor, by contrast, seems to fit a lot better with Obama's desire to have someone who empathizes with regular folks, given that she overcame a lot of obstacles to get to where she is. (Full disclosure -- I know the Judge very well and hope she gets picked.)
Given that Stevens is very likely to retire in a year or two, I would think Obama would pick Kagan then after she's actually done something as SG. I very much doubt that she'll have any confirmation problems then either.
Gerard
My apologies -- I took out the "liberal lion" phrase, as I think it is embedded with so many associations that I can't support it with evidence.
I also agree that Kagan, as a former Clintonite, is a moderate liberal and no lefty activist. Not sure why Orin Kerr thinks she may be the latter.
I'm curious, in your view is there evidence that Kagan is less "smart, thoughtful, and principled" than Merrick Garland and Diane Wood? Is there evidence that she is less moderate? Would you be less "delighted" if she were nominated?
I would think that the fact that Kagan has gotten through recently would argue against picking her — she is now likely a safe pick for a future seat, and she will be even safer then because she will have more experience strategizing and arguing before the court. Obama doesn't need a safe pick now.
The sensible thing for him to do is to pick someone considered a reach, but not crazy, on the theory that he can save someone like Kagan for later when he might not have 60 votes and/or when another nomination falters. In the meantime, he gets to use her as the 'tenth' justice.
Compare to Reagan. When Rs controlled the Senate, Reagan picked Scalia, got unaminous approval. When it flipped to Ds, Reagan picked Bork and the rest is history. Its been theorized that Reagan should have picked them the other way around. The combative Bork would have been easier to push through with a R Senate and the unaminous Scalia vote would have still gotten through on a wide margin even with a D senate.
Obama is going to get another spot on the court. He does not need to go for some grand leader with this nomination. Plus, Sotomayor actually has the judicial experience to ensure that all opposition to her will be limited to ideological differences. Ideology alone will not be enough to derail any Obama nominee, so she'll sail through like Ginsburg.
For Obama, I think that if he wants to shore up a particular constituency, he will pick a hispanic, a female, or somebody from one of the groups he is aiming at. If he wants to build his centrist and coalition building credentials, he will pick somebody of that vein. Or, he might decide he needs to establish himself as an intellectual, and pick a particularly smart and well qualified person - kind of like the John Roberts selection did for Bush (like him or not, Roberts had a sterling resume).
I think it would be shrewd for Obama to pick a centrist nominee. Then, he could continue to promote a liberal agenda, but later point to a cenrist nominee to show he has been a centrist all along.
Wow. That tells me a lot about EverydayLiberal, but not much about Elena Kagan.
Left out "frilly dresses" and "pretty hair bows" from her list of concerns, btw.
True, R nominees tend to be more unlucky but that's because there's been more of them. Before Clinton, LBJ was the last to nominate. Before him, Kennedy nominated Byron White, a moderate to conservative, who outlasted either of LBJ's appointments.
Granted, it would be a comparatively short time with relatively few cases since she would, barring something unforeseen, remain on the court for a long time. Given that, is it something that would even be considered?
I'm more thinking out lout here than anything else, but when I heard her name mentioned this morning on NPR, it was what I first wondered. I would appreciate any sort of info someone might have regarding USSC's rules re: conflicts, recusals, etc., whether those rules are different, and also what work she's done at the SG's office that would have an impact on her work at the court.
From what I've seen, I think she would make a good Justice.
Best,
Ben
Is there anyone out there in the running who favors a more generous view of the Fourth Amendment? The good-faith exception is becoming the rule . . . particularly in cases involving federal agents who've run the warrant past an AUSA (as they I think they must under the US Atty Manual).
trial exp and exp with legal svcs, workers comp, employment law, and hospital law, all bread and butter issues for the real people of this country, who need a voice on the court.
Just wondering, because when things like Supreme Court vacancies pop up, folks talk about appointing someone who is Black, or Hispanic, or female, sometimes based on anecdotal or stereotypical beliefs about such individuals, without mentioning the fact that it is rather illegal for the rest of us to base hiring decisions on such criteria.
Whether he is legally required to do so or not, why shouldn't we expect President Obama (or any othe President)to lead by example in such matters?
In the same vein, why should we not hold those who suggest selection of Justices on such grounds up to obloquy?
The job of the SG entails oral advocacy. But this issue would be irrelevant to a Supreme Court justice.
My guess is that every Democratic nominee will favor a strong exclusionary rule.
A Supreme Court justice is not "hired" in the way an accountant is hired. This is a political appointee which means political considerations are at play. Most importantly, it undermines the legitimacy of the institution if the court has an absurd gender imbalance. If we were starting from scratch, making picking a whole new court, I'd be more sympathetic to the idea that gender/race should not be considered. But we are starting from a highly disproportionate state where there are almost as many smart women lawyers as men out there but only one of nine members of the Supreme Court is a woman.
My suspicion is that empathy is just code for someone who is not a judge. She does fit that criteria, obviously.
But God forbid anybody call them soft on crime.
Unless the crime is torture.
Maybe he should appoint an unlicensed plumber.
"Hard on cops..."
...nevermind.
Tell that to all the people criticizing Justice Thomas for not asking questions during oral arguments.
But please, can we have a politician, a practicing lawyer or a trial court judge, and not another appellate judge/White House lawyer? And perhaps someone not from the Harvard/Yale/Columbia Establishment?
This is a big country, and we have a big profession. We can have a qualified person without going to the same well.
I'm all for being hard on cops (heh heh - queue inner Beavis &Butthead) when they step out of line, but the exclusionary rule works more to the benefit of criminals than to the detriment of cops. Letting a criminal walk simply because the constable blundered is about as soft on crime as you can get.
The PC choices (like Kagan) bore me to tears. I'd much rather see him nominate Koh. Or even Koh's future boss, or her husband.
A politician would be dead last in my order of preference, even behind law professors.
Congratulations. That's a new low.
Screw that. If we don't have exclusion, we should go all the way back to the original understanding of the power of the Sheriff: if an officer acts in violation of the law, he's no longer acting as an agent of the State. That means that searched a house without a warrant is armed home invasion, effecting a false arrest with a baton is assault with a deadly weapon plus aggravated kidnapping.
She's not a white man.
Maybe he should appoint an unlicensed plumber.
The only one Obama knows had a tax lien against him, so he's probably going to end up in the Cabinet.
Obama will nominate Anita Hill because he:(a) has a sense of humor, (b) wants to make Clarance Thomas uncomfortable, AND (c) likes the spectacle of Anita Hill following Clarance Thomas to a THIRD place of employment. What is the saying? Three Strikes, You're Out? The Third Time is a Charm? etc
(HUMOR OFF)
Okay, that was funny.
And I think it's a done deal that it'll be Kagan. Although Pam Karlan would be a wonderful pick as well, apropos of the exclusionary rule discussion going on here.
Orin,
Off-topic, but I wanted to take the opportunity to say I appreciated your reflection on Souter in the Times. I came upon it without knowing you'd be included, and it was a treat.
Super post, Need to mark it on Digg
Joker
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