The Kagan Vote and What It Signifies

Predicting the Senate vote in Supreme Court confirmations is not difficult, either a statistician or any political pundit could make a pretty good guess. Statistically, using the Judiciary Committee vote as a predictor has typically meant that there will be about six "No" votes in the Senate for every negative vote in committee. If Lindsay Graham is the sole Republican committee member to support confirmation, the remaining six "No" votes suggest about 36 "No" votes in the Senate. Were Graham to cast a seventh "No" vote in committee, however, it seems unlikely there would be 42 negatives for Kagan on the Senate floor. This is perhaps the most conservative Judiciary Committee contingent for the Republicans in the voting history of the committee, and unanimous opposition by those committee members does not signal solidarity among all Senate Republicans. The New England contingent of Snowe, Collins, Gregg, and now perhaps Brown will not necessarily follow suit. If those four support Kagan, then the Republicans are poised to cast 35 votes against confirmation. Assuming all Democrats adhere to the party line along with the two Independents, then Kagan will have 65 votes propelling her into the Supreme Court. If she manages to pick up Senators Graham and Richard Lugar of Indiana, then she can accumulate 67 confirmation votes. Sotomayor received 68 last year.

Except for the party leadership, though, such predictions are fairly useless. The vote will be what it is. Assuming, however, these numbers come to pass, what they reveal is a politicized confirmation process, one in which Republicans have come around to the view that they may oppose a nominee on the basis of her political ideology and the anticipated liberal positions she might favor in particular Court cases. Not all opponents will be willing to admit that. A number will couch their opposition in terms of the military recruitment narrative favored by the Republicans, but acceptance of that narrative is itself a function of political ideology. More so than Democrats, Republicans have been trapped by their own rhetoric that pillories any results-oriented approach to evaluating Court nominees. Conservatives are no less results-oriented than the rest of us, but they must couch their opposition in language that suggests they are not driven by ideological concerns. Democrats built their opposition to Robert Bork in 1987 precisely on the basis that he was simply too conservative, "outside the mainstream" being their contribution to the rhetoric that infuses the contemporary confirmation process.

Those who decry the partisanship represented by the forthcoming vote fail to understand that the Court itself is part of the political process and, as such, so too is the nomination and confirmation process. Recognizing this is actually the first step towards creating a more serious dialogue in the confirmation hearing, paving the way for a dialogue on alternative conceptions of constitutional and statutory language, as well as other jurisprudential constructs. Clearly the Court is more constrained than other political bodies, but one cannot ignore the differences between a Justice Scalia and a Justice Stevens and having a discussion that would permit views like their to be discussed and debated in a Senate confirmation hearing would constitute a great exercise in civic education.

Acknowledging political differences does not mean that a senator must always vote his or her partisan preference. Like Lindsay Graham, a bona fide conservative, a senator could reason that Kagan is a liberal and likely to favor positions on cases before the Court that would be at variance with his. However, she's the nominee of a liberal president, she's replacing perhaps the most liberal justice on the Court, and, for a liberal, she seems to possess the temperament, intelligence, professional competence, and integrity that he hopes would characterize both liberals and conservatives on the Court.

Kagan will take her place on the Court, and the Court will be changed to some degree. She is not John Paul Stevens, and as yet, neither we, nor even she, know who Justice Elena Kagan will be.

Kagan Critique of Process Intact

It appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently.

What is the rationale for not responding to questions on issues that might come before the Court? David Souter may have stated it best in his confirmation hearing:

If the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge, the people who come before him can have a fair hearing . . . . a fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take.
Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. . . . can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?

In addition to the argument that nominees should avoid any appearance of having prejudged important constitutional questions, Senator Hatch has also argued that the Senate should avoid any “ideological inquisition” that might stir up political partisanship concerning the nomination. Guess which nomination that was, Bork or Kagan?

The argument in favor of the kind of exchange that Kagan advocated in her 1995 book review article is the right of the people and the need of the senators to know what kind of justice this nominee is likely to be. In 1981, Senator Denton told nominee O’Connor, "It is my earnest hope that your response will be neither broad nor bland, because I will base my single vote on those responses." Nineteen of Denton’s 23 questions dealt with abortion, and his futile attempt to draw O’Connor out on the topic would have produced a “No” vote from him, as promised, except he yielded to pressure from the Republican leadership and abstained in the committee vote and voted affirmatively in the full Senate.

The Senate has long ago reached a point of reasonable acceptance regarding the suitability of questions pertaining to a nominee’s constitutional and judicial philosophy. It has not yet reached a point at which the burden of proof has been laid on the nominee and the nominee’s supporters. That likely will not happen until some senator, some day, stands up to vote “No” on a nominee because of the nominee’s refusal to be forthcoming to questions from the Committee. Senator Specter may be ready to take that step.

Kagan v. Senate Judiciary Comittee

I can’t recall any Supreme Court nominee having written in advance on the nature of confirmation hearings, prescribing what that process should entail. (That may say more about my memory than reality.) In a 1995 book review (62 U.Chi.L.Rev. 919), Kagan asserted that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.” Specifically, she argued that confirmation hearings should address a nominee’s judicial philosophy as well as how this philosophy might be applied in practice, “by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces.

While this might be the ideal in a confirmation hearing, it typically fails to achieve that level of forthright and informative discourse. The president’s political opposition, whether it be in the Senate or among the advocacy leaders, is too intent on seizing any and all opportunities to frame responses into opposition bullet points that can excite public opinion which, in turn, can be leveraged to their financial and political advantage. Cognizant of the opposition strategy (in part because they’ve been there and done that) the nominee’s supporters are too intent on limiting the discourse so that it cannot generate sufficient fodder to arouse controversy and substantial opposition in the public sphere, perhaps jeopardizing the nomination.

The result is a rather strange dance of politics (closely resembling a loose canon), in which both sides refuse to admit that the process of evaluating Supreme Court nominees is driven by politics, except to note with some disdain that the “other side” is playing politics. In reality, of course, they are all engaged in politics, one strategy of which is to claim that you are not being political. The mere fact that the president gets to choose the nominee and the Senate gets to confirm or reject makes it political. There’s nothing wrong with that.

By admitting its political nature, the Senate and the nominee could actually begin to engage in the type of dialogue that Kagan envisioned for the process. Senators could oppose the nominee because they disagree with her political philosophy or her take on several key issues that have characterized the Court’s stormy history. Instead, we’ll have to hear the opposition assert that her lack of judicial experience is sufficient grounds for opposition, when apparently it was not for Louis Brandeis, Felix Frankfurter, Earl Warren, or William Rehnquist. Of course, those 19 months for Clarence Thomas was all that was needed to put him over the top, I suppose. We’ll also hear her characterized as a judicial activist, though only by those unable to see the activism of Scalia, Roberts, or others on the conservative wing of the Court.

What we need is dialogue that will permit us to perceive that this nominee has the intellect, the understanding of and ability to deal with significant constitutional issues, the integrity to faithfully interpret the constitution and laws as they understand them, and some sense about what that understanding is. As the number of closely divided Court decisions reveals, there are distinctly different points of view on any number of these principles. And it’s OK for a senator to decide his or her vote on agreement or disagreement with the nominee on this basis.