The Volokh Conspiracy

At Balkinization, Marvin Ammori and Mark Tushnet review some of Elena Kagan’s scholarship (and seem more impressed than Paul Campos and Paul Mirengoff). Ammori explores some of her First Amendment scholarship and wonders whether she is sympathetic to “corporate speech rights,” such as those embraced by the Supreme Court in Citizens United.  Brian Leiter also comments here.

Tushnet is particularly impressed by her article “Presidential Administration,” 114 Harvard Law Review 2245 (2001); “this is an incredibly smart and insightful piece of work.”  I agree with Tushnet.  The piece foreshadowed the rise of White House “czars” and other methods of ensuring greater Presidential control of the executive branch.  Combined with “Chevron’s Nondelegation Doctrine,” 2001 Supreme Court Review 201 (2001) (co-authored with David Barron), it reveals that Kagan is a strong supporter of Presidential authority over executive agencies.

I am particularly struck — though definitely not convinced — by her and Barron’s effort in the latter article to reformulate Mead‘s approach to Chevron deference to grant more authority and autonomy to high-level political appointees.  Specifically, they argue that Chevron deference should turn on the nature of the decisionmaker, not the process through which the decision was made.  In other words, if a statutory interpretation is made by a low-level career official in the conduct of his or her duties (e.g. a tariff classification ruling), no deference is due.  But if it is made by a high-level political appointee to which Congress has delegated decision-making authority under the relevant statute, this fact is more important than whether the agency used notice-and-comment rulemaking or some other more formalized decision-making process.  It’s an interesting argument — and one that shares some commonalities with Justice Scalia’s approach to Chevron deference questions — but also one that is in tension with principles underlying the Court’s recent (and, in my view, generally sensible) administrative law jurisprudence. Once Kagan is confirmed, as I expect, it will be interesting to see how she enters the Court’s internal debate over Chevron deference.

[Note: Revised to add additional links.]

I don’t have a lot to say about Obama’s nomination of Elena Kagan that can’t be said better by others. Unlike now-Justice Sotomayor, she does not have an extensive record on issues that are within my core areas of expertise. I do, however, want to highlight one important advantage Kagan has over the realistic alternatives: an apparent openness to non-liberal ideas.

I. Kagan’s Relative Openness to Non-Liberal Views of the Law.

My general view of Kagan is that she is quite liberal and likely to vote with the liberal bloc on the Court on most important issues. At the same time, however, her record at Harvard shows that she has respect for alternative perspectives and takes them seriously. In this respect, , she seems different from Sotomayor, who wrote several opinions that disposed of major controversial legal issues in a cursory fashion that made it clear that she did not believe that the other side had a serious case that deserved serious consideration (see, e.g., here, here, and here).

Given the nature of the Obama Administration and the large Democratic majority in the Senate, it was more or less inevitable that we would get a liberal nominee and that she would probably be confirmed. In such a situation, I would rather have a liberal justice who takes alternative perspectives seriously and might occasionally be persuaded by them than one who is generally dismissive.

It is also worth mentioning that Kagan has critics on the left who believe that she is almost a closet conservative. I highly doubt that is in fact the case. Kagan has a long record of liberal views and involvement with liberal causes. It is significant that there aren’t any noteworthy conservative or libertarian legal scholars or activists who believe that Kagan is somehow one of them or even believe that she is a centrist. Ed Whelan’s recent “baffle[ment]” at claims that Kagan “might secretly harbor some conservative legal views” is representative of the dominant view of her on the right, including among right of center legal scholars who know her well, such as Harvard’s Charles Fried. Still, there is at least a small chance that Kagan’s left-wing critics have divined her true views correctly. Even if she isn’t any kind of conservative or libertarian, she might be less liberal than administration supporters hope. With Kagan, that possibility at least exists. Not so with most of the other plausible nominees. The small but not infinitesmal chance that Kagan might actually turn out to less liberal than I expect is another strike in her favor.

II. Other Relevant Considerations.

While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.

In my view, it is perfectly legitimate for senators and others to oppose a professionally qualified judicial nominee because of flaws in her judicial philosophy. On this, I agree with Barack Obama. At the same time, any nominee must be weighed against the likely alternatives, not just against some ideal pick. Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to pick. Therefore, I don’t see much to be gained from aggressively opposing her nomination. Indeed, if administration opponents dig in and signal that they will wage all-out war against any plausibly liberal nominee regardless of her views, that will just increase the administration’s incentive to appoint hard-line left-wingers. If Democrats believe they can’t avoid a tough nomination battle no matter what they do, they will have little reason to go with relative moderates.

Even if they choose not to oppose Kagan, conservatives and libertarians can still use the nomination and resulting hearings as an opportunity to raise important issues and point out weaknesses in the administration’s judicial philosophy. Kagan herself defended the legitimacy of inquiries into a nominee’s judicial philosophy in a 1995 article. Despite some excesses, I think we were fairly successful at doing that during the debate over Sotomayor, which gave new prominence to property rights issues, and forced Sotomayor to publicly repudiate liberal views on the importance of “empathy” and international law. Hopefully, the Kagan hearings will be another opportunity to advance public debate over important legal questions.

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about what liberals had learned from the Federalist Society and about the liberal American Constitution Society trying to copy its methods and success.

Years ago, I asked an administrator at the Federalist Society whether Kagan’s speech had been recorded and he said that he didn’t think so.

UPDATE: In a 2009 interview, Elena Kagan makes her praise for the Federalist Society sound almost like an afterthought, rather than her opening statement:

MSNBC, partially quoting an NPR interview: While at Harvard, received a standing ovation from the conservative Federalist Society. “I sort of looked out at them, and I said, ‘You are not my people, and everyone laughed. And then I said, ‘But I love the Federalist Society, and I think that that’s when I got a standing ovation.” (NPR interview, 12/22/09)

I remember at the time being struck by the boldness and seemingly genuine praise of her exclamation, “I LOVE the Federalist Society!” Yet I was wondering if it was just pandering until she uttered the line about the Federalists not being her people — a qualification necessary for her praise to be credible to me.

Too bad there’s probably no tape. Memories are notoriously imperfect.

[UPDATE: I checked my recollection with a Federalist officer and law professor present on the occasion and he remembered it exactly as I remember it: Kagan opened with "I LOVE the Federalist Society! "I LOVE the Federalist Society!" She followed with a statement that "you are not my people."]

SCOTUSBlog’s Tom Goldstein says the pick is coming tomorrow, and David Lat has reasons to think it’s Kagan (as Politico reported Friday).  If Kagan is the pick, there will be no filibuster and she will be confirmed — perhaps even with 65 votes as Goldstein predicts — but there could be some bumps on the ride.

UPDATE: NBC is confirming.

Politico‘s Mike Allen thinks so.  Jan Crawford profiles the pros and cons of the final four — SG Elena Kagan, and Judges Diane Wood, Sidney Thomas, and Merrick Garland — while most of the buzz surrounds Kagan and, to a lesser extent, Wood.  For what it’s worth, I remain skeptical that SG Kagan would be easier to confirm than Judge Wood.  This is the conventional wisdom, but here is why I think it’s wrong.

As an initial matter, I think it is easier to confirm a sitting appellate judge with sterling credentials than an administration insider.  Add that the judge is from the midwest while the insider is yet another Ivy Leaguer, and the distinction becomes more stark.  Further, polls suggest the public wants a nominee to have some prior judicial experience — and Kagan has none.  Indeed, she also had relatively little legal experience outside of academia.  This does not mean she’s unqualified, but I do think it means she would be easier to oppose — and therefore would be a heavier lift.  [Note, however, that I would not oppose confirmation of either SG Kagan or Judge Wood.]

The knock on Judge Wood is that she would be a controversial pick because of a handful of opinions concerning abortion and religious liberty, and perhaps a criminal case or two.  These cases confirm what is well-known — that Judge Wood is a liberal judge.  But that should hardly be a surprise.  It is unthinkable that President Obama would nominate someone who is not reliably liberal on most major issues, particularly abortion.  Senate Republicans did not go to the wall to oppose Justice Ginsburg’s confirmation over these issues, and they won’t with Judge Wood either.  Further, any controversy over her judicial opinions would be a “day one” story.  That is, Judge Wood would be criticized for these opinions right out of the gate.  By the time of her hearings and the vote, however, this story will have become old.  Sure there may be 20-30 votes against her over abortion, but I can’t see these opinions ever catching fire and causing her a problem.  More importantly, with Judge Wood there would be few surprises.  There’s a reason why Presidents keep drawing Supreme Court nominees from the appellate bench — they are relatively easy to confirm.

What about SG Kagan?  31 voted against confirming her to be Solicitor General, and Senators are almost always more deferential to Administration picks for the Justice Department than the Courts.  So it’s safe to assume that she starts approximately 30 votes in the hole.  As with Wood, there are some obvious sources of controversy, such as Kagan’s support for barring military recruiters at Harvard Law School because of “don’t ask, don’t tell,” and the subsequent Solomon Amendment litigation. This is Kagan’s “Achilles heel,” according to former TNR editor Peter Beinart.  The problem is not that Kagan opposed the Congressionally mandated policy — Beinart agrees with Kagan that DADT is a “moral injustice.”  Rather, says Beinart, “the response that Kagan favored banning military recruiters from campus—was stupid and counterproductive. I think it showed bad judgment.”  He continues: “Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.”  It also reinforces the perception that Kagan is another northeastern, Ivy League liberal who is out of touch with the nation’s heartland.  It will also lead Senate Republicans to ask pointed questions about the SG’s office handling of pending litigation challenging DADT in the Ninth Circuit.

SG Kagan’s record could produce additional flashpoints that Judge Wood would not have to worry about — flashpoints that will produce stories long after the “day one” profiles.  For example, if Kagan is nominated Senate Republicans will demand access to executive branch records from her time in the White House counsel’s office during the Clinton Administration (much as Senate Democrats demanded such documents for John Roberts and others).  There is already speculation about what such a document dump could reveal, and there are almost certain to be surprises of one sort or another.  Senate Republicans might also emulate Senate Democrats’ past efforts to obtain internal memos from the SG’s office.  Some may seek to make hay over her work for Goldman Sachs or her poor record of minority recruitment at Harvard.

And then there will be the hearings.  As is traditional, Senators will seek to ask probing questions, all of which the nominee will evade.  But then Senators will point out that Kagan is on record calling upon the Senate to demand more — much more — from prospective Supreme Court nominees. Indeed, she wrote a law review article about it, “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995), in which she argued that probing questions about a nominee’s views were not only appropriate but essential.  According to Kagan in 1995, the Senate should ask — and demand answers — about both a nominee’s “broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.”  This article will make it particularly difficult for Kagan to avoid providing more detailed answers than have other nominees in the past, and will give Senate Republicans an additional line of attack — and if she refuses to go along she could even be accused of a “confirmation conversion.”

None of this means that Kagan would not be confirmed.  Of course she would — as would Judge Wood (or Judge Garland or Judge Thomas).  None of the leading prospects would be successfully opposed.  But some nominees would provoke more of a fight than others, and this matters.  A nomination fight has political costs.   The more time an Administration must spend defending a nominee, distributing new talking points, responding to a new attack or revelation, etc., the less time the Administration has to devote to other things.  Combating a constant drip of revelations and information demands is very time-consuming, and will deplete the Administration’s ability to devote attention elsewhere.  This can be a particular problem if the fight does not energize the base, and liberal commentators seem less excited about the prospects of a Justice Kagan than some of the alternatives.  All this means is that a Kagan nomination could be more politically costly than the conventional wisdom suggests, particularly when compared to the leading alternative of Judge Wood.

UPDATE: According to BLT, the White House is denying that a decision has been made.