US Politics: A Supreme (Court) Challenge for the Republicans

Lee Haddigan writes for EA:

With the announcement on 9 April of the forthcoming resignation of Justice John Paul Stevens, the stage was set for another round of one of America’s more entertaining political spectacles –-- the confirmation of a Supreme Court Justice.

Contending arguments can be made as to which country, the United States or the United Kingdom, is the more "democratic", but when it comes to the appointment of judges America wins hands down. In the United Kingdom a vacancy in the courts is filled by the most qualified lawyer/judge as determined by an independent Commission, who recommend that person to the Lord Chancellor. In the United States, in theory, anyone can become a judge, including on the Supreme Court, and their eligibility for a position is determined by the political process.

For Elena Kagan, nominated to replace Stevens, this is the process she will face:

Under Article II of the Constitution the President has the power to nominate a person to fill a vacancy on the Supreme Court, but not the authority to appoint the new Justice. The final decision is arrived at by a simple majority vote of the whole Senate, after the candidate has been examined by the Senate Judiciary Committee.

President Obama announced the nomination of Kagan to be the new Justice on 10 May. Kagan immediately resigned her position as Solicitor-General, the government’s lawyer in cases before the Supreme Court, and began to prepare for her appearance before the Senate Judiciary Committee which starts on 28 June. The administration hopes that she will be passed out of the Committee before the Independence Day recess and that her confirmation decided by the Senate sometime in late July.

Let us be clear. Barring a catastrophic revelation of her unsuitability for the role, Elena Kagan will be appointed the new Supreme Court Justice. She will win a Senate vote, by approximately 65 to 35, and become the third female Justice on the Court. Some conservatives, inside and outside of government, may dispute the inevitability of Kagan’s confirmation, but their opposition to her nomination is doomed to failure.

Kagan is a liberal, but she replaces a liberal justice. The present conservative majority on the Court will not be affected. There is thus little advantage for the Republican Party in Congress in trying to block Kagan’s nomination. They may protest certain positions Kagan has taken in the past, but the numbers are not in their favour. The Judiciary Committee is composed of 12 Democrats and 7 Republicans, and it is inconceivable they will reject a Democratic nomination. With 57 Democrats in the Senate, backed by 2 Democrat-leaning Independents, it is as unlikely that Republicans will be able to stop or filibuster Kagan when it comes to a floor vote in late July.

Any conservative desire to promote Kagan’s confirmation as a partisan issue is hampered by the candidate’s past. Kagan has never been a judge, so that conservatives have no judicial record on which to present her as a dangerous liberal ideologue. They are relying on policies on which she commented, in her previous employment as an aide in the Clinton administration between 1995 and 1999, tp revealing her as a progressive stalwart. But the stark reality for Republicans is that Kagan’s history has already been examined in the confirmation hearings before she was appointed Solicitor General;,hearings that exposed nothing controversial enough to affect her Supreme Court nomination. The 90,000 pages of documents released by the Clinton Presidential library for this nomination process have already been researched extensively and contain no startling revelations.

So conservatives have been forced to turn to Kagan’s performance as the Dean of the Faculty of Law at Harvard between 2003 and 2009. They cite her refusal to allow military recruiters onto the campus as evidence that she is anti-military and have noted her "moral hypocrisy" in not refusing a $20 million gift from a Saudi Prince to establish a Sharia Law Center at Harvard. Joseph Farah writes:

Kagan is a radical antimilitary and proabortion zealot. This selection by Barack Obama reveals once again his extremist agenda of leaving America undefended, elevating alternative lifestyles to sainthood and exterminating the most innocent human life with reckless abandon and persecuting anyone who tried to stand in the way. In a nutshell, that's who Elena Kagan is.

Don’t expect similar language to be used in the Senate in the next few weeks. Kagan’s time at Harvard was notable for her desire to hire conservatives to join a faculty dominated by liberals. Some of the more moderate Republicans realise Kagan is a "centrist" and, in the current political climate, is as acceptable a candidate as they are likely to see nominated by a Democrat President. Expect to see six or seven of them vote for Kagan in an attempt to alleviate accusations of partisanship by Democrats.

What you will see over the next few weeks in the Senate are constant references by Republicans to a book review Kagan wrote in 1995 in the University of Chicago Law Review. Commenting on a book decrying the political acrimony surrounding the Supreme Court nomination hearings in 1987 of Robert Bork (which gave rise to the use of the term "to bork"), she lamented:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have present-ed to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.

Kagan will face the accusation at her hearings that, in her "repetition of platitudes" to the Senate she is presenting "a vapid and hollow charade" to the public. Because, make no mistake, like all recent candidates Kagan will refuse to give detailed answers to specific questions regarding her views on controversial issues. As a consequence, both of the Democratic control of the nomination process and her non-controversial background, Kagan’s hearings will be little more than a rubber-stamping exercise.

The significance of Elena Kagan’s appointment to the Supreme Court lies in the tone that it sets for a possible Bork-style nomination hearing in the future. Republicans have nothing to gain by defeating the current candidate. But, if Obama is re-elected, and if one of the conservative Justices retires during his tenure, we are set for a knock-down, drag-out slugfest of a nomination process for the vacancy. Allied to the possible challenges in the Supreme Court to Obama’s progressive legislation, especially health care reform, and the likelihood of some Republican gains in the Senate in the next two election cycles, the retirement of  a Justice Scalia (74, conservative ideologue) or Justice Kennedy (73, conservative "swing vote") will see a style of confirmation hearing not seen since Bork in 1987. (The contentious Clarence Thomas hearing in1991 was driven more by concern with his personal life than constitutional issues.)

With the Kagan hearings, Republicans need to build a perception of bipartisanship and cooperation that they can refer  to in the more importantl Supreme Court appointments to come. If a majority of Republicans will ignore the advice of the more moderate members of their party and vote against her, in a futile attempt to rally their supporters, that is more a sign of the current partisan atmosphere in Washington than of the liberal credentials of Elena Kagan.

Comments

[Just Jack]

Some interesting premises. I would note for accuracy, however, that Ms. Kagan did not immediately resign the position of solicitor general. She holds that post today. She only stepped aside from playing an active role in any current case that she has not already been a part of.