Reality and myth about the upcoming Supreme Court confirmation process

A White House official said to be in the know reportedly has declared that “it doesn’t matter who [President Obama] chooses [for the Supreme Court], there is going to be a big ‘ol fight over it, so he doesn’t have to get sidetracked by those sorts of concerns.” This “realization” supposedly is “liberating. . .the president” to choose whomever he pleases, including someone from the hard left.
This view cannot be taken seriously as a theory of whom to nominate. There may be no left of center jurist who would be confirmed unanimously, but a nominee like Judge Merrick Garland would almost certainly breeze through the confirmation process.
Moreover, it can’t be a matter of indifference to Obama whether he wins the expected “big ‘ol fight.” If he were to go too overtly far to the left with his pick, the nominee might not be confirmed (see Dawn Johnsen). Then Obama would have to try again, and by that time Senate Republicans might be substantially more numerous.
The White House officials comments are best viewed as sending some sort of a message. Quite possibly, it was a message to supporters of Elena Kagan, the Solicitor General, whose backers are portraying her as easy to confirm, and to the leftist base, which seems to be concerned that Kagan isn’t sufficiently liberal. The message to the former may be, “back off;” the message to the latter may be, “don’t panic.”
The irony is that there’s no reason to believe Kagan would be all that easy to confirm, and no reason for the left to be concerned that she would be anything like a centrist Justice. 31 Republican Senators voted against Kagan’s confirmation as Solicitor General. With the stakes so much higher for a Supreme Court nominee, and with less deference accorded to a nominee outside of the executive branch, there’s a good chance that the number of no votes would increase. Keep in mind that among those who voted yes were Senators Coburn, Hatch, and Kyl (Specter voted no, but surely will vote yes this time).
As for her ideology, there is little to support the claim that Kagan is a centrist. To be sure, there’s not that much of a track record. She has never been a judge and her academic career, in which she most recently served as an administrator, does not appear to have produced a rich body of tell-tale scholarship. However, she’s clearly an ardent supporter of gay rights, including the right to same-sex marriage.
Indeed, the only evidence I’m aware of that suggests Kagan would be other than a garden-variety judicial leftist is her stance on issues related the war on terrorism. During her S.G. confirmation hearings, for example, Kagan testified that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.
However, Kagan was merely echoing Obama administration policy; for that matter, her testimony was similar to Eric Holder’s. One could not expect Kagan, any more than Holder, to give confirmation testimony at odds with administration policy.
Similarly, Kagan naturally has supported Obama administration policy as Solicitor General. However, there’s no reason to assume that, once she leaves the executive branch, she will continue to take these kinds of positions, and certainly no reason to think she will be “centrist” when it comes to issues having nothing to do with the war of terrorism.
Let’s conclude by comparing Kagan to Judge Diane Wood, considered the other front-runner and considered the more liberal of the two. Both can expect tough-sledding in the Senate but, barring some sort of shocking disclosure, both are likely to be confirmed. Wood can be seen as more reliably liberal, given her long track record, but I doubt that there’s really much difference between them ideologically.
If confirmability and ideology are about equal, how might Obama decide between the two. In Kagan’s favor is the fact that she’s about ten years younger than Wood. In Wood’s favor is that she has a reputation for being a heavyweight judge, having gained the respect of leading conservative judges Richard Posner and Frank Easterbrook, who serve with her on the Seventh Circuit. She thus seems better suited for the role of “taking on” Chief Justice Roberts and Justice Scalia, a cause near-and-dear to the leftist base and perhaps to the president, as well.
For that reason, and in light of claims (albeit largely groundless) that Kagan is “guilty” of centrism, Wood is likely to be better received by the base. Thus, if Obama thinks she can be confirmed, as I do, the balance might tip slightly in her favor.


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