Closing in on a Court Pick

Politico‘s Mike Allen thinks soJan 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.