SUNDAY,MAY 16, 2010
Myths about making it to the Supreme Court
5
“
E
by Kashmir Hill and David Lat
lena Kagan, President Obama’s nominee to replace Justice John Paul Stevens, is an exception to one widely held rule
about who makes it to the Supreme Court: She’s never been a judge. That sets Kagan, the current solicitor general and a former dean of Harvard Law School, apart from two-thirds of justices in history and with the nine current justices, all of whom previously served on federal appeals courts. The last justice who had no past judicial experience was William Rehnquist, who, like Kagan, was nominated to the court from a high-ranking position at the Justice Department. So Kagan’s selection already challenges one myth. But there are others worth disproving as we embark on another Supreme Court confirmation process.
How a nominee performs in congressional hearings matters in the final vote.
chair, as well as her body language, will be televised across the country, then parsed with the kind of obsessive attention that justices give to provisions of the Constitution. Despite all the attention, though, the hearings are unlikely to make a difference in the Senate’s final vote. Confirmation hearings as televised
1
spectacle began with Justice Sandra Day O’Connor’s nomination in 1981.
When Kagan appears before the Senate Judiciary Committee, her every utterance from the witness
Since then, only one nominee has been voted down after hearings: Judge Robert Bork, a conservative scholar who at his hearings argued with senators over his controversial views. Bork’s nomination in 1987 was contentious from its outset, but his confirmation hearings did him in. Nominees since Bork have not made the same mistake. Instead, they have refused to divulge their views on divisive legal questions, politely but firmly declining to answer on the grounds that such issues might someday come before the court and that prejudging their merits would be improper. Senators who met with Kagan last week have identified issues that they
KLMNO
B
B3
You’re a hottie with a smokin’ little body.” — Luann Haley, a diner at Duff’s Famous Wings in Buffalo, to President Obama
might press in her hearings. Sen. Jeff Sessions (R-Ala.) cited her views on the military’s “don’t ask, don’t tell” policy. Sen. Mitch McConnell (R-Ky.)worried that Kagan will be a “rubber stamp” for Obama’s initiatives. On any such subjects, they shouldn’t expect more than bland reassurances from Kagan. The lack of substantive legal
discussion at the hearings is one reason that legal scholars and commentators frequently dismiss them as kabuki theater — stylized, ritualized and devoid of suspense. One of the best descriptions of the confirmation hearings came from Kagan herself. In a 1995 article, the young law professor at the University of Chicago condemned them as “a vapid and hollow charade.”
Everything a nominee has ever said or written is on the Web, making confirmation much harder.
2
Public scrutiny of nominees is no longer limited to their résumés, judicial opinions and
law review articles. It now includes their informal discussions, statements and personal details stored in the immense digital file cabinet that is the Internet. Rather than acting as a stumbling block to confirmation, however, the easy availability of this information functions as a safeguard. Long before a nominee faces a Senate hearing, the blogosphere has conducted a thorough vetting of a president’s short list and found any smoking guns. Much of the online discussion and
speculation surrounding Kagan has focused more on her private life and sexual orientation than on what’s been called her relatively thin academic paper trail. Politico even tracked down friends and former roommates who confirmed that she has indeed dated men.
But legal blogs and news sites are also scouring her public record on issues such as minority faculty hiring while she was dean at Harvard and her position on military recruiting on campus. Soon the Clinton Presidential Library will add to Kagan’s public dossier, releasing memos she authored while working for the Clinton administration in the late 1990s. One memo she wrote, urging Bill
Clinton to support a ban on the late-term abortion procedure that
some call “partial birth,” has already surfaced and will certainly come up during her hearings. Kagan now has several weeks to develop her response. She could take a page from Chief Justice John Roberts, who was asked in his 2005 confirmation hearings about a matter addressed in memos he wrote while working for the Reagan administration. He responded: “I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position.”
With two nominations already, Obama could reshape the court for decades to come if he wins a second term.
3
After Justice Stevens officially steps down at the end of the current court term, four of the remaining justices will be more than 70 years old. Many court watchers expect Justice Ruth Bader Ginsburg, 77, to retire before the end of Obama’s first term. Still, even if Obama gets to appoint three justices — a third of the court — hemay not be able to reshape the institution to the same extent his predecessor did. With a mere two appointments,
Chief Justice Roberts and Justice Samuel Alito, George W. Bush moved the court significantly to the right, in part because he had the opportunity to replace a justice who was a swing vote —O’Connor. The 5 to 4 decision in January in the Citizens United case, which gave corporations greater ability to sway elections, reflects Bush’s influence on the court. Obama simply can’t achieve the same lasting impact by replacing liberal justices, such as David Souter, Stevens and Ginsburg. Neither of the conservative-leaning justices in the over-70 camp — Antonin Scalia, 74, and Anthony Kennedy, 73— has indicated plans to retire soon. They will probably wait, if they can, to step down under a Republican president.
The confirmation process has become so partisan that no true liberals or conservatives can get through it.
4
The Supreme Court isn’t necessarily the battlefield on which presidents deploy their
most partisan judicial warriors.
But when one party controls the White House and has a majority in Congress, nominees understood to be “true liberals” or “true conservatives” have made it through the process. That’s what happened for Clinton-appointed liberal Ginsburg and Bush-appointed conservatives Alito and Roberts. A filibuster is the only way a minority party can stop an appointment, and it’s rarely used over a Supreme Court nominee. The Senate has successfully filibustered a high court appointment just once, in 1968, to prevent Lyndon Johnson from naming Justice Abe Fortas to be chief justice. Because of the delay, Richard Nixon had the opportunity to fill the seat, choosing Warren Burger.
The confirmation process may be flawed, but we’re stuck with it.
5
Supreme Court nominees who follow in Kagan’s footsteps could very well face a different path
from nomination to confirmation. The process is not dictated by the Constitution or any statute; rather, it is a creature of political custom. As such, it could be readily changed, if the president and the Senate could agree on how. As Benjamin Wittes pointed out in his book “Confirmation Wars,” some of the most well-known aspects of the hearings, such as senatorial grilling of the nominee and televised proceedings, are of relatively recent vintage. Other nominees had given live testimony prior to John Marshall Harlan II’s hearings in 1955, but Harlan, selected in the wake of the court’s 1954 decision in Brown v. Board of Education, was the first to be aggressively questioned about his views on specific cases and his overall judicial philosophy. For Supreme Court groupies and legal bloggers like ourselves, confirmation hearings can be an immensely enjoyable spectacle. But whether they are still useful in assessing the fitness of nominees for judicial office is a question worth asking — unlike, sadly, many of the questions that grandstanding senators will soon be posing to Elena Kagan.
kashmir@abovethelaw.com david@abovethelaw.com
David Lat is the founding editor and Kashmir Hill is a co-editor of Above the Law, a legal blog.
.
One solution for cleaner, abundant domestic energy is staring us in the face.
We know we need more reliable, domestic sources of energy.
And we have one.
Today, the U.S. has more natural gas than Saudi Arabia has oil, giving us generations of this clean, domestic energy source.
And a stable supply means stable markets. According to the U.S. Energy Information Administration, the price of electricity from natural gas will remain stable for consumers over the next 25 years.
As Congress and the Administration look for ways toward a cleaner tomorrow, the answer is right here: America’s natural gas.
It’s the Natural Choice…now, and in the future.
www.anga.us
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140 |
Page 141 |
Page 142 |
Page 143 |
Page 144 |
Page 145 |
Page 146 |
Page 147 |
Page 148 |
Page 149 |
Page 150 |
Page 151 |
Page 152 |
Page 153 |
Page 154 |
Page 155 |
Page 156 |
Page 157 |
Page 158 |
Page 159 |
Page 160 |
Page 161 |
Page 162 |
Page 163 |
Page 164 |
Page 165 |
Page 166