My post quoting the Miguel Estrada letter in support of the Elena Kagan nomination led some commenters to disagree: Conservatives should play hardball against the Kagan nomination, they argued, and not be duped by misguided appeals to deference to Presidential choices, or by praise for Kagan’s intellect or temperament or other nonideological credentials. (Jim Prevor, writing in the Weekly Standard, seems to suggest a similar approach, but comes out somewhat differently in the end; I’m not sure that what I have to say here squarely responds to him.)
But while political hardball may sometimes be fair — much depends on exactly what sort of hardball is contemplated — there’s a separate question: Is it likely to work, in the sense of accomplishing the hardballers’ goals? And it seems to me that any serious conservative campaign to try to block Kagan is unlikely to work. Instead, conservatives should use the nomination hearings as a platform for doing something much more productive.
Kagan seems likely to get nearly all the Democrats’ votes; and while the Democrats’ majority isn’t filibuster-proof, the Republicans in the early 2000s pretty firmly condemned filibusters of Supreme Court nominees, at least nominees that have majority support. The criticism extended to filibusters of judicial nominees generally, but it certainly applied to Supreme Court nominees as well.
What’s more, the Roberts and Alito nominations were in fact not blocked by the Democrats, because enough Democrats refused to go along with the filibuster. Indeed, then-Sen. Obama was willing to filibuster Alito. But the fact remains that enough Democrats ultimately acceded to the Republican arguments against filibustering Alito. If Republicans use a filibuster to block Kagan, despite their anti-filibuster arguments of the last decade, and despite their success in getting Roberts and Alito through, I suspect, that this will look very bad for them — and will hurt them in November.
And, beyond that, while it’s not clear exactly how liberal Kagan will be, it’s hard to see why Republicans should think that the next nominee will be materially less liberal. Maybe Merrick Garland would be, or so I’ve heard some say; but I doubt this would be so as to Diane Wood or Sidney Thomas. So blocking Kagan through a filibuster would mean a political cost — possibly a substantial cost, in a very important election — and with fairly little political gain.
It seems to me that the sensible thing for Republicans to do is to use the Kagan nomination as a means of persuading the public that the Republicans’ vision of the Constitution is sounder than the Obama Administration’s vision of the Constitution. The lack of concrete evidence about Kagan’s personal views on various issues would help that, by leading people to associate her more with the Obama Administration’s views, and more broadly with the views of liberal Democrats.
So the Republicans could talk about (say) gun rights, the use of foreign law, same-sex marriage, the use of religious symbolism in government speech, and so on — not with an eye towards to defeating Kagan in the Summer, but to defeating the Democrats in November. That, I think, is a strategy that might actually succeed, and might actually help advance conservative political and legal ideals.
Nelson Lund says:
This post seems to be attacking a straw man. There isn’t going to be a filibuster, at least partly for the reasons set out in the post. The harder question is whether Republicans should vote against Kagan, knowing that the Democrats have enough votes to confirm her. That question doesn’t seem to be addressed here.
May 17, 2010, 5:12 pmStephen Lathrop says:
I’m pretty sure conservatives would be better off if they blocked the Kagan nomination, and then used their powers to force Obama to appoint someone more to their taste—someone to the right of Scalia and Thomas, for instance. The Red Sox would be better off if they traded Jason Varitek straight up for Joe Mauer, too.
May 17, 2010, 5:14 pmRichard Riley says:
I suspect Kagan is going to say she agrees with the John Roberts balls-and-strikes approach to judging – she’ll call ‘em fair and square – because, frankly, it’s the only approach to judging that voters consistently agree with. As plenty of liberal commentators have observed, despite their agonized efforts liberals haven’t come up with a way to present their judicial vision in a compelling way. Obama is making a good try with the “empathy” idea – which is actually pretty popular, to conservatives’ chagrin – but in the end, people generally still want neutral judges and they think laws and constitutional provisions can be interpreted and applied nonideologically and that’s what they like.
For all the bellyaching on the right, doesn’t that mean the conservative vision of the judicial craft has won?
May 17, 2010, 5:40 pmMichael B says:
It’s less “hardball” (a term which, as suggested, connotes a variety of both responsible and less responsible motifs and designs) than it is a certain resolve, a certain integrity as applied to Constitutional precepts, a certain civic courage as well – to see those fundamental Constitutional interests explored with as much probing and probative depth as this lifetime Supreme Court appointment should demand. “Hardball,” yes, but in a responsibly conceived sense, as well as a certain undaunted sense, combined.
Or, put in the negative, foregoing any naive “collegiality” vis-a-vis senators and others “on the other side of the aisle”. So it is “hardball,” but in a manner that is subsidiary to those higher interests and foundations first and foremost, not in the manner the left/Dems played “hardball” with Thomas, Alito and others.
May 17, 2010, 5:46 pmSteve says:
For all the bellyaching on the right, doesn’t that mean the conservative vision of the judicial craft has won?
It means the conservative sound bite has won. It would only mean the conservative vision has won if conservative judges actually decided cases by calling balls and strikes. It’s sort of like trumpeting the fact that voters say they want smaller government as a conservative victory, when neither party is actually doing anything to bring about smaller government. A hollow victory at best.
May 17, 2010, 5:48 pmChristopher Cooke says:
The conservative view of judging is one that exists in utopia, not reality, on the Supreme Court cases that the public most cares about, because the meaning of the Constitution is far from clear and not readily susceptible to a ‘plain reading’ answer. So, I am not too sure what the fuss is about. Every Supreme Court nominee is nominated for political reasons. Some presidents pay attention to the nominee’s qualifications to serve on the Supreme Court more than others. Kagan is a highly qualified nominee, in terms of legal knowledge and intellectual ability. And, she does not have the Bork paper trail issue to make trouble for her. So, I predict relatively smooth sailing. And, if the Republicans mount a strong attack on her based on her lack of judicial experience, they are essentially saying that no non-judge should be nominated to the Supreme Court, which would be too bad.
May 17, 2010, 6:05 pmAlan says:
“And it seems to me that any serious conservative campaign to try to block Kagan is unlikely to work.”
Compared to what? Showing that the GOP isn’t willing to play the same game the Democrats play? What good is that going to do?
“Kagan seems likely to get nearly all the Democrats’ votes; and while the Democrats’ majority isn’t filibuster-proof, the Republicans in the early 2000s pretty firmly condemned filibusters of Supreme Court nominees, at least nominees that have majority support. The criticism extended to filibusters of judicial nominees generally, but it certainly applied to Supreme Court nominees as well.”
So what? Let the Republicans hoist the Democrats by their own petard. Let the Democrats know that two can play at this game. There’s nothing hypocritical about that.
“The lack of concrete evidence about Kagan’s personal views on various issues would help that, by leading people to associate her more with the Obama Administration’s views, and more broadly with the views of liberal Democrats.”
No. That strategy failed miserably with Sotomayor, even though Sotomayor had publicly expressed the views of a Berkeley radical on the way that race should affect how judges approach their work. With Kagan–who never made “wise Latina” comments and never openly endorsed judges’ “choos[ing] to see” certain facts because of their background–the strategy will fail even more signally.
“So the Republicans could talk about (say) gun rights, the use of foreign law, same-sex marriage, the use of religious symbolism in government speech, and so on — not with an eye towards to defeating Kagan in the Summer, but to defeating the Democrats in November.”
Which won’t work, because Kagan, like Sotomayor, will keep her mouth shut about where she stands on those issues. Confirmation hearings are like Prime Minister’s Question Time in Britain: questions don’t get answered, and no one ever pays a price for it.
May 17, 2010, 6:08 pmGordo says:
I see a two-stage strategy for “conservative” elites re: the federal judiciary.
First stage – attack the liberal Warren Court for its “judicial activism.” Trumpet loudly the value of “judicial restraint” (the “balls and strikes” approach). Declaim that “liberal elite” judges are betraying the “people’s will.”
Second stage – (where we are now, as is exemplified by the posts on this very stage from the likes of Professors Barnett, Lindgren, Somin, etc.) Loudly pick up the cudgel of the need for a judiciary to “protect the rights of minorities” (economic minorities, at least) and uphold the pure standards of the constitution by striking down legislation right and left (see, e.g. Levy and Mellor’s “The Dirty Dozen.”) That the second stage is intellectually completely contradictory to the first stage is, of course, to be ignored.
Admittedly, it would take a cynic to think that this two-stage strategy is deliberate and plotted. But that’s the way the arguments seem to be evolving over the years to me.
May 17, 2010, 6:14 pmGordo says:
Hey Alan, why don’t you just concede that, since Obama got elected President, and the Democrats elected healthy majorities to both Houses of Congress, you should just let them confirm a pretty mainstream nominee like Kagan, and concentrate your energies in getting Obama unelected in 2012 by someone who will appoint an intellectual troglodyte to the Court who is more to your liking.
May 17, 2010, 6:16 pmMichael B says:
Essentially, a non sequitur, CC.
As to “plain reading,” you’d need to define that, but defined in contradistinction with sophistries, with contrived casuistries, etc., then yes, a “plain reading” conceived in that contrasting sense would at least reflect something more positive, more faithful to the Constitution.
Or, conceived more broadly still, think in terms of the moral and social/political universals invoked by the Constitution. Those universals, while they cannot be apprehended in a simple and positive or positivist sense, are there to be positively appreciated nonetheless.
May 17, 2010, 6:18 pmUrso says:
Seems to me that Robert’s concurrence in the Graham case today is a great example of the “balls and strikes” approach, and it’s neatly framed by the majority and dissent’s “all or nothing” philosophies.
May 17, 2010, 6:22 pmBalls and Strikes My Butt... says:
How anyone can believe that “balls and strikes” meme is beyond me. See, for example, today’s Graham v. Florida decision, which has Roberts calling “ball” while Thomas, Scalia and Alito are calling “strike”. Or Gonzales v. Raich, for that matter, with Scalia & Thomas, to two paramount originalists, reaching orthogonal conclusions from the same source material and analytical tools.
That “balls and strikes” meme really needs to be put out of our collective misery, for the weak oversimplification it actually is.
May 17, 2010, 6:24 pmSteve says:
Seems to me that Robert’s concurrence in the Graham case today is a great example of the “balls and strikes” approach, and it’s neatly framed by the majority and dissent’s “all or nothing” philosophies.
I would call that judicial minimalism more than anything else. Roberts is more of a minimalist than many of his colleagues, but it’s certainly not an approach he adheres to 100% of the time – see the exceedingly broad holding in Citizens United, for example.
Each one of the three main opinions in Graham relies to some extent on a judicial gloss. The reality is that very, very few cases make it to the Supreme Court if they’re susceptible to a straightforward balls-and-strikes ruling. Heck, such cases rarely make it to the intermediate appellate court. Of course, it’s common for judges to claim they are adhering to the plain text even when they are engaged in a debatable act of interpretation; but I assume you know how many legs a dog has if you call the tail a leg.
May 17, 2010, 6:40 pmAlan says:
[Substance-free insult deleted. -EV]
Oh, and if that comment gets deleted because it’s disrespectful, how about applying the same treatment to the comment I’m responding to? [The previous comment was very near the borderline, and I thought about deleting it, but rightly or wrongly decided against it, chiefly because it actually made a substantive argument as well as just being an insult. But this insult was basically just an insult, so I deleted it, though I spent more time than I probably should have explaining my reasoning. -EV]
May 17, 2010, 6:49 pmSandy MacHoots says:
Kagan seems likely to get nearly all the Democrats’ votes; and while the Democrats’ majority isn’t filibuster-proof, the Republicans in the early 2000s pretty firmly condemned filibusters of Supreme Court nominees, at least nominees that have majority support. The criticism extended to filibusters of judicial nominees generally, but it certainly applied to Supreme Court nominees as well.
Prof. Volokh, you’re a very fine scholar but you’re not a politician. Really, you don’t see the advantage to Republicans if every Democratic Senator up this year has to go on record as voting in favor of a left-wing Harvard law professor in the teeth of a full-blown right-wing attack? You don’t think Republicans want to see Harry Reid on TV every night having to bribe or strong-arm Democrats to force her through?
What’s more, the Roberts and Alito nominations were in fact not blocked by the Democrats, because enough Democrats refused to go along with the filibuster
Yes, they failed not because the Democrats didn’t try, but because there were too many moderate Democrats who wouldn’t cooperate because they didn’t want to have to explain to moderate Italian-American voters why they voted to torpedo the guy.
If Republicans use a filibuster to block Kagan, despite their anti-filibuster arguments of the last decade, and despite their success in getting Roberts and Alito through, I suspect, that this will look very bad for them — and will hurt them in November.
I find this argument frankly incredible. Obama thought that filibusters for ideological reasons were fine and voted to filibuster Alito. How exactly did this hurt him at the polls? Obama has now flip-flopped and thinks filibusters are bad. So Republicans are doomed unless they stop filibustering? Heck, all Republicans have to say is, “Yeah, we argued that filibusters were bad. Obama disagreed and voted against a candidate about 500 times more qualified than Kagan. So we’re going to do exactly what he did.” How on earth does that even count as hypocritical — let alone hypocritical enough to interest any voter who isn’t a law school professor?
Assuming you’re a politician running in a center-right district, how many votes do you imagine you could possibly lose by failing to support what center-right voters would perceive as a pointy-headed inexperienced gay left-wing Jewish Harvard law professor who’s never tried a case, never been a judge, never distinguished herself as a scholar, champions all sorts of causes most people oppose, and whose chief qualification is that she’s chummy with Harvard alum Barak Obama?
Sotomayor was a different question. Obama was flying high, she was an Hispanic (a group the GOP has been courting with some success) who actually had a diverse background, substantial private practice experience, a record as a judge, and a pretty uplifting life story. She was also about the most reasonable candidate Republicans could ever imagine getting out of Obama at that time.
But times change. Obama has alienated a big slice of the moderate vote, and Kagan is not the kind of candidate who’s going to reassure them. There is absolutely no upside in Kagan for any Democrat, since the pointy-headed gay left-wing Jewish Harvard law professor vote is pretty much already committed.
May 17, 2010, 6:57 pmIlya Somin says:
First stage — attack the liberal Warren Court for its “judicial activism.” Trumpet loudly the value of “judicial restraint” (the “balls and strikes” approach). Declaim that “liberal elite” judges are betraying the “people’s will.”
Second stage — (where we are now, as is exemplified by the posts on this very stage from the likes of Professors Barnett, Lindgren, Somin, etc.) Loudly pick up the cudgel of the need for a judiciary to “protect the rights of minorities” (economic minorities, at least) and uphold the pure standards of the constitution by striking down legislation right and left
Among the many flaws in this argument is the fact that none of the people you list under “second stage” ever made the claims you list under the “first stage.” Therefore, we have in no way contradicted ourselves on this issue. In any event, a commitment to strong judicial review in no way requires us (or anyone) to accept everything the Warren Court did.
May 17, 2010, 7:03 pmArthur Kirkland says:
I suspect it will be part of every nominee’s toolkit throughout the foreseeable future. One-size-fits-everyone gibberish adored by the public. Irresistible.
May 17, 2010, 7:05 pmsad observer says:
Prof. V, what would you say if every Republican announced the following:
I believe that Kagan and Roberts are both stellar nominees, and both clear any hurdles of intellect, character, and so on. Both would equally merit confirmation under a system of deference.
I further believe that both are equally within the “mainstream” of American judicial philosophy today, even if they are on opposite sides of that mainstream. Any argument that defines the mainstream to include Kagan, but exclude Roberts, is laughable. Yet, Mr. President, you voted against Chief Justice Roberts, and you even voted to filibuster Justice Alito. If I apply the same standard that you did, when you stood in this chamber, I must surely vote against Elena Kagan, despite her qualifications.
But that tit-for-tat escalation got us into this mess. I regret the decline of our confirmation process, and people of good faith on both sides of the aisle will surely agree on that general view. It is easy to point fingers about who started it, or who escalated it, and it hard to figure out how to fix it. Both sides have contributed to the problem to at least some degree, and perhaps the best way to move forward is not to count every detail and unsettled score of the modern era.
But still, even if we can wipe the slate clean of the battles of the 80s, or 90s, or whenever, and declare a truce and a new dawn, it is hard for me to overlook your very recent role. I know that we cannot undo the past, but I ask this.
If you will publicly acknowledge that your votes were mistakes, and apologize for contributing to the vicious cycle, I will vote for Elena Kagan, and I hope that your apology and my vote are a step forward. If you will, instead, refuse to apologize, but will simply admit that there’s no neutral distinction to be drawn betwen Kagan and Roberts, other than which side they’re on, I will still vote for Kagan. I will do so, despite the asymmetry, as long as everyone is clear that your standard is raw politics, and mine is not.
If, instead, you insist that the two situations are not comparable, and that the “mainstream” includes Ms. Kagan and your other nominees, but excludes the majority of our Supreme Court and much of our lower courts and the legal profession, I invite you to explain that further. I challenge you, or perhaps Vice President Biden, to debate that issue. Let America see what “mainstream” means to you.
But if you will do none of those things, and will neither defend nor apologize for your votes, I will, with a heavy heart, vote against Elena Kagan, and against your other nominees, just as you voted against lower-court nominees as well. I will re-visit this issue when we have a president open to building a shared consensus about this process, rather than one who asks us to apply a double standard in his favor.
Thank you.
May 17, 2010, 7:19 pmSammy Finkelman says:
President Obama would be unlikely to take notice of this, but Senator Schumer might. Of course the answer might wander between the idea that Roberts or Alito really was outside of the mainstream, or the need for “balance” on the court. If the vote was close what such a senator said would be misrepresented.
May 17, 2010, 7:24 pmSally says:
I think the strategy is going to be dictated in large part by the nominee herself. So far the public hasn’t heard her speak about much of anything. Presumably she’s cramming hard and also presumably she’s someone who can be cool under fire. If she does as good a job as Roberts and Alito (and to a lesser extent Sotomayor) in coming across as bland but intelligent, mild-mannered yet principled, then the opposition’s not going to get very far in acting as if her confirmation is a huge threat to the Republic. If she fumbles around, gives them an opening, then they should take advantage of it as long as it doesn’t look like bullying overkill.
May 17, 2010, 7:51 pmsad observer says:
In my experience, it’s common to claim that Roberts, but not Kagan (or Estrada, but not Liu, etc.), are outside the mainstream. But when I ask anyone to define the term first, and then apply it, things break down quickly. Any “bell curve” approach — lining up the country’s lawyers, or lower-court judges, or the populace generally, and then defining the percentiles to be cut off (e.g., the extreme 10% on both sides) — fails for either side’s double standard. Putting aside for a moment the severe artificality of a one-axis spectrum for judicial matters, the reality is that more than 10% of the legal profession takes the Roberts or Scalia or Stevens or Brennan view of the world, whether that Roe itself should still be reversed, or either side of Citizens United, or whatever.
The system “works” for one side’s desired result if, and only if, the definition incorporates that side’s substantive views. “Roe is objectively right, as is Lawrence, and Hamdan, etc., and anyone who objects is per se outside the mainstream, even if half the country or half the bar members oppose me on this.” The problem, of course, is that the very word “mainstream” seems to me to connote the relative spectrum of the world we live in.
Of course, an anchored “objective” view has the advantage of resisting evil in a world gone mad, as racism, antiSemitism, and such were undoubtedly mainstream, in the relative sense, in various times and places (and, some would say, in America today, etc.). But as a definitional matter, it’s not the usual understanding of mainstream. As a practical matter, it’s by definition not a standard one can urge the other side to adopt (other than adopting its mirror image).
Rarely, if ever, does someone admit that “I’m defining mainstream to exclude half (or even 1/3) of the spectrum.” But, on the other hand, rarely does someone even try to demonstrate that, say, resistance to Roe places one in the outer tenth rather than a solid third or more.
It’s a variant on Lake Woebegon – where all the children there were above average, half of America (all on one side, not both outer quarters) is outside the mainstream.
Of course, all this is easier for those who define the mainstream as their zip code, or better yet, their colleagues on the faculty.
May 17, 2010, 7:58 pmConstantin says:
Presumably she’s cramming hard and also presumably she’s someone who can be cool under fire.
This may not be true in fact. She’s admitted that she panicked in her first argument as SG, and the reviews by people who were there ranged from “debacle” to “disaster.”
May 17, 2010, 7:58 pmIdag says:
Frankly, I think we should amend the Constitution to switch to a merit-based system of selecting SCOTUS justices. Give all the candidates a difficult test and the top scorer gets nominated to the next SCOTUS opening (I think that’s how they select ALJs in some legal areas). The problem w/ the current crop of SCOTUS justices is that while some may be in the mainstream of legal thought, none are in the mainstream of personal political thought. What I mean by that is as follows:
1. To get nominated, a SCOTUS candidate must have political connections that are sufficient to get the President’s attention.
2. It is likely that a SCOTUS candidate that has made these types of connections has strong personal beliefs that mirror the platform of the President’s party.
This process favors smart legal candidates w/ strong liberal or conservative personal views, and it disfavors smart legal candidates who happen to be moderates and/or don’t have strong political views. When you select SCOTUS justices w/ strong personal political views, you get weird decisions where the legal reasoning has been tortured into fitting into a preset outcome.
May 17, 2010, 8:07 pmElliot says:
Opposing Kagan has little to do with Kagan; she’s a pawn in that game. The object is to weaken Obama and the democrats in the election.
May 17, 2010, 8:16 pmepluribus says:
sad observer, voters have a limited attention span. Any argument that is over two sentences long isn’t going to register with them. Eight long paragraphs is going to put them to sleep. To win an election, you need a slogan: “It’s morning in America.” “It’s the economy, stupid.” “Compassionate conservatism.” “Change you can believe in.”
May 17, 2010, 8:17 pmOwen H. says:
I think it’s more that people aren’t quite as ready to believe the, “They started it!”, kind of arguments you use.
May 17, 2010, 8:25 pmepluribus says:
Idag says:
So you think the ability to decide Supreme Court cases is equivalent to taking a bar exam? If there were easy answers that could be scored “right” and “wrong” on a multiple-choice test, that might make some sense. But being a Supreme Court justice requires a lot more than knowledge of the law. It requires statesmanship and a sense of the impact that Supreme Court decisions have on society. There are no “right” and “wrong” answers, no matter how devoutly some wish there were. That’s why politics plays a role in Supreme Court decision-making, and in the nomination and confirmation process. And by “politics” I don’t mean the difference between Republicans and Democrats, or even the difference between conservatives and liberals. I mean the art or science of guiding governmental policy. Take that out of the process and decisions will be as correct as a computer program can deliver, but devoid of justice and statesmanship.
May 17, 2010, 8:33 pmepluribus says:
That’s how John Marshall got nominated. And the judgment of history has been pretty favorable to Marshall’s legacy. I don’t know of any justice that ranks so consistently high in historical evaluations.
May 17, 2010, 8:40 pmSoldier of Fortune says:
Opposing Kagan has little to do with Kagan; she’s a pawn in that game. The object is to weaken Obama and the democrats in the election.
No, the object is to destroy the ability of Obama and his minions to govern before the next election, and there is nothing wrong with that. It’s called “softening up the terrain.” Kagan’s nomination should be held until after the November elections. Then make the nomination process for any office as difficult as possible. Conduct weeks long hearings, not just one or two days and out. Place holds on all nominees and legislation. Dig up dirt on their personal lives. Find obscure articles and statements and beat them through the media. Make them wish they were never born. Take no prisoners.
Continue to make life miserable by attacking them through the budget process. Haul them before committees every week. Start investigations. Destroy them so they cannot do their jobs.
Wimpy, gutless, surrender monkey Republicans don’t know how to fight back. A good defense depends on a good offense. Nobody ever won a war by giving up ground. It’s advance, advance, advance. Make the other guy surrender.
May 17, 2010, 9:01 pmSuperSkeptic says:
But mostly in a similar sense that Washington ranks so consistently high in historical evaluations. Not as much merits (although there is a lot there, to be sure, for both) as much as for laying revered institutional foundations. We project a lot onto them for that, I think.
May 17, 2010, 9:20 pmSuperSkeptic says:
Really? There is no such thing as a strategic retreat?
http://en.wikipedia.org/wiki/Nathanael_Greene#The_strategic_retreat
May 17, 2010, 9:23 pmMax Power says:
I hope that this comment was just a failed attempt at humor, rather than a genuine display of borderline anti-Semitism/homophobia.
Meanwhile, what are the “all sorts of causes most people oppose,” pray tell, which Kagan “champions”? The only cause I can think of which she arguably “championed” was ending Don’t Ask, Don’t Tell, which 75% of Americans (and a majority of self-professed Republicans and conservatives) agree with. Anything else in mind?
And do you really think “center-right” voters would look at Kagan and see a commie-pinko radical-lesbo Harvard-elitist feminazi? Or do you think reasonably moderate voters would see her as a pretty smart and professionally accomplished woman who deserves a fair shot? The voters you describe sound less like the “center-right” and sound more like Limbaugh-loving dyed-in-the-wool GOP partisans who would never, ever vote for a Dem, whether s/he opposed Kagan or not.
May 17, 2010, 9:39 pmmichael livingston says:
What I don’t see is how it is contradictory to oppose the nomination and make larger points at the same time. I also think that it is more difficult than Eugene suggests to know whether you will succeed until you try. I don’t think any of the successful efforts to block Supreme Court candidates, including Bork, appeared likely to succeed initially. A principled effort to depict Kagan as a very nice person but out of touch with the American majority–in her educational and cultural background, in her placing of liberal causes over the American military, in what appears to be a very expansive view of Government power–seems to me both to make a broader point and to have at least some chance of success, in affecting future nominations if not this one.
May 17, 2010, 9:39 pmMax Power says:
Yes, an effort to turn the nation against judicial candidates with elite “educational background[s]” led by the party that gave us Alito (Yale Law), Roberts (Harvard Law), Scalia (Harvard Law), and Thomas (Yale Law) — and which destroyed the candidacy of Harriet Miers (Southern Methodist Law) — would be very convincing.
Also, when you say that the GOP should argue that she’s “out of touch with the American majority” in her “cultural background,” what culture are you referring to? Jews? Something else?
May 17, 2010, 9:53 pmPaul A'Barge says:
Right. That’s nice. How’s that sensible stuff working out for us?
May 17, 2010, 10:00 pmPaul A'Barge says:
Max Power:
Please. She’s a big New York Liberal who has spent her entire life in a virtual reality that is tantamount to the Upper West Side of Manhattan.
Don’t be so infuriatingly obvious. Unless of course you can’t help it.
May 17, 2010, 10:02 pmrpt says:
Sandy speaks out for the anti-softball, anti-Jew, anti “pointy head”, anti Harvard vote.
May 17, 2010, 10:04 pmMax Power says:
@Paul A’Barge:
Me:
Paul:
Don’t be “obvious[ly]” what? In any event, the poster whom I was quoting referred to her “cultural background.” When I think of “cultural background,” I don’t think of her political ideology (“Liberal”) or her post-secondary education and career trajectory (“who has spent her entire life in a virtual reality”). If someone asked me my cultural background, I’d say “Eastern European Jewish,” not give my political views, educational pedigree or resume. But maybe I’m wrong.
May 17, 2010, 10:20 pmrpt says:
By the way, the Civil War is over, and your side lost.
May 17, 2010, 10:20 pmArthur Kirkland says:
After eight years of right-wing ideology and Republican incompetence, ’twas our nation nearly brought to its knees. We’re still digging out, so unless the first words out of a strident right-wing mouth are “I apologize,” is there a reason we should be greatly interested in what follows?
May 17, 2010, 10:31 pmrpt says:
Why does S of F hate America?
May 17, 2010, 10:47 pmleo marvin says:
He’s just a starry-eyed idealist who dreams of America without half the Americans.
May 17, 2010, 11:53 pmGordo says:
My apologies to all (even Alan), for my ill-tempered remarks.
If the professors I named in my previous post (and others as well) can truly look at themselves honestly and say that they are not intellectual hypocrites as I posited, then I’ll accept that.
I was thinking more along the lines of Karl Rove/Grover Norquist, as the type who would think along such lines.
May 18, 2010, 12:08 amdevoman says:
Balls and Strikes My Butt has it exactly right. The “ball and strikes” meme assumes there is an objective reality waiting to be revealed by the astute judge. In point of fact, here’s how balls and strikes really works:
The rookie umpire says, “I call them as they are.”
The slightly more experienced umpire says, “I call them as I see them.”
The veteran umpire says, “They’re nothing until I call them.”
May 18, 2010, 12:26 amAlan says:
Forgive my stupid question (and I do realize it’s a stupid question), but what exactly does that mean?
(I did understand the first two, and their relevance to this context.)
May 18, 2010, 1:33 amState Policy Blog » Blog Archive » The Kagan nomination, May 18 says:
[...] John Vecchione and Eugene Volokh independently discuss the merits of fighting the Kagan nomination starting from opposite positions, [...]
May 18, 2010, 2:24 amSoldier of fortune says:
Really?There is no such thing as a strategic retreat?
What do you think the Republicans have doing since the Obama “Presidency” began?
May 18, 2010, 2:54 amKazinski says:
All the Democrat tactics have done have re-enforced in the public’s mind that they do want judges that make law, not interpret it. All the polls show that the Republicans and the vast majority of the public share the same vision of the courts. Following the same petty failed blueprint the Democrats have will just be counter productive. They won the election let them have their judges, within reason of course, and in 2 1/2 years its going to be awfully tough for them to stand in the way of any mainstream conservative.
My first choice would be Randy Barnett.
May 18, 2010, 3:22 amdevoman says:
Alan,
The first umpire believes he can call an objective reality; the second umpire is aware that perception is involved. The third umpire realizes that, in fact, he creates reality the moment he declares the pitch.
Similarly, as to interpreting the Constitution, some may believe there is an objective reality waiting to be revealed. Others are aware that interpretation is involved. But, in point of fact, the Constitution means exactly what the Supreme Court rules it to mean.
May 18, 2010, 7:09 ammattski says:
Filibustering? Saying No? Scratching themselves?
May 18, 2010, 7:52 amTim McD says:
Of course she should be confirmed. And of course all the Republicans should vote against her. That is the way the system works. The President gets to nominate who he wants, and the Senate votes on them. If we get Kagan, it is what we deserve, we (not me, but us) voted for him and a bunch of democratic senators, and elections have consequences. The Republic is strong, and will endure.
She will be a disaster, but it could be worse. Just learn to live with it, and Remember in November!
May 18, 2010, 8:07 amchris says:
People with no real skin in the game always think punting on fourth down is a bad idea.
May 18, 2010, 8:11 amWidmerpool says:
Elections have consequences. See last election. See upcoming election. Repeat–ad infinitum, hopefully (and changefully).
May 18, 2010, 8:20 amAdam B. says:
Wow. And to think I wrote this for Daily Kos upon the Roberts nomination:
May 18, 2010, 8:49 amIAdmitIAmCrazy says:
Let’s face it: SCOTUS nominations are eminently political as the justices are deciding constitutional matters that are anything but a-political. However, there is a difference between interpreting the law and the constitution on the one hand and political preferences on the other. I think Stevens’ position in Kelo v. City of New London is a case in point. I do not doubt for a moment his sincerity when he says that he decided against his own preferences.
May 18, 2010, 9:57 amAnd yet, of course there are differences in the judicial philosophy. I cannot find any fault in a president preferring one philosophy over the other, neither is there any illegitimacy in legislators’ differing preferences.
Given that even the most originalist and the most “living constitution” reading of Article Three will coinicide that the justices do have life tenure, it is very reasonable to argue for a super-majority when the Senate advises and consents to a nomination. Or put it more bluntly: objecting to filibustering for judges and justices to me is pointless.
However, how you go about resolving the political controversies and still get decent choices is a completely different matter. Currently, as Elena Kagan’s proves, it is best to show no particular profile, and thus people with a controversial track record have little or no chance of “making it.” Fiction sometimes offers ideas: In The West Wing President Bartlet nominated in a deal a very liberal Supreme Court Justice, Evelyn Baker Lang and a very conservative Associate, Christopher Mulready. Not the worst of solutions showing that hard-ball is not everything. My guess is that the majority of the U.S. electorate will honor more a grown-up political debate than a contrived and silly discussion about “wise Latinas”. (Does anyone even remember it?) In that respect, a nominee Diane Wood would have been far more illuminating and interesting.
And I need not remind you: Liberals are quite unhappy with Kagan, too
epluribus says:
Tim McD says:
No, it doesn’t. Scalia was confirmed 98-0. Kennedy was confirmed 97-0. Ginsburg was confirmed 96-3. Breyer was confirmed 87-9. Roberts was confirmed 78-22. Alito was confirmed 58-42. Sotomayor was confirmed 68-31. The suggestion that the minority (or opposition) party must vote no on a Supreme Court nominee is false. History (even the most recent history) tells us otherwise.
May 18, 2010, 10:28 amtk says:
I think Mr. Volokh’s approach is right. I doubt, however, that the Republicans will “persuad[e] the public that the Republicans’ vision of the Constitution is sounder than the Obama Administration’s vision of the Constitution” in the confirmation process in part due to Republican senators (and their surrogates) being unable to articulate these vissions, and the duifferences between them, in a compelling way. No one ever went broke underestimating the capabilities of members of Congress. It is also the sort of thing that could backfire, if the line of inquiry was blundering enough.
Furthermore, I am not convinced that the American people want to get into the details of these competing visions in any meaningful way.
May 18, 2010, 10:43 amCareless says:
If the only purpose the Constitution serves is to provide a base for people with J.D.s to play word games with in order to rule us, tear the damned thing up. A Constitution that can mean anything is worse than no constitution at all.
May 18, 2010, 11:03 amdevoman says:
Careless,
Exactly! Now you see why the balls and strikes meme is so meaningless.
May 18, 2010, 11:50 amKestrel says:
Okay, so who gets to write the test? Or grade it? I don’t see any way to keep politics and politicians out of the process.
May 18, 2010, 11:55 amepluribus says:
Careless says:
Your myopia is showing. Read a little about the history of the U.S. The Constitution gave us a government strong enough to unite half a continent, stave off a civil war designed to perpetuate slavery into the indefinite future, provide economic and political leadership for most of the world, and save millions from Fascist and Communist dictatorships. None of that would have been possible without the Constitution, which ranks today as the oldest written governmental charter in continuous use the world. If that is all it meant, it would be a triumph. But it also provides real and enforceable guarantees for fundamental human rights–an added triumph. I know it’s cool on this site to be cynical. Is that part of the conservative-Libertarian mindset? OK, so I’m not cool.
May 18, 2010, 12:22 pmAJK says:
But if those guarantees mean neither more nor less than what five judges want them to mean, how real or enforceable can they be?
May 18, 2010, 12:46 pmMark Field says:
How real do you think they have been over the last 40 years or so?
May 18, 2010, 1:07 pmepluribus says:
The Constitution has guaranteed regular elections for 220 years or so. This has continued in times of war, rebellion, economic panic and depression, loyalty scares, riots, draft-card burnings, and similar crises. In the end, it is the electoral system that is the greatest triumph of the U. S. Constitution. Elections are generally won by the majority. Supreme Court decisions are also made by majority votes. Supreme Court justices are chosen by popularly elected officials–presidents and senators. Ultimately, the Supreme Court is answerable to public opinion. Nobody in his or her right mind would seriously want it otherwise. Don’t be to eager to tear up the Constitution.
May 18, 2010, 1:34 pmSandy MacHoots says:
You’re reading too much into it. EV made a point about what he believes to be political reality. I disagreed. If a liberal points out that Evangelical white Southern males won’t generally get real enthusiastic about a gay black female candidate, I don’t understand her as criticizing blacks, gays, or women. It’s a factual statement. I’m actually quite fond of many pointy-headed Harvard graduates, but reality compels me to recognize that if they were running for office in Arkansas or Nebraska or Idaho they’d have some problems.
Me, I’d vote against Kagan, but that’s because on the court she’d be very likely to vote in ways that I would very much dislike.
Yep. Unlike Sotomayor, if you put together a checklist of those qualities likely to get you labeled that way, she’d be right up at the top, higher than Ginsburg. Whether she really is one is someting I don’t know.
That’s because you — as do many liberals — think in terms of competing ethnic groups rather than individuals. Your “cultural background” is where you grew up, who you hung out with, the socioeconomic status of your parents and your neighbors, what jobs you held, where you went to school, where you go to church, and so on. A Mexican-American who grows up in New York City, the son of a wealthy corporate executives who don’t go to church, and who goes to Choate and Yale and Harvard and starts work for Skadden Arps has a very different “cultural background” than his twin brother who grows up in Brownsville, the child of devoutly Catholic domestic workers, who goes through the Brownsville public schools, and then starts working the West Texas oilfields.
May 18, 2010, 1:40 pmbailey says:
Don’t forget military hating when creating the list of perjoratives. If the R’s can’t at least make a fight out of someone from the far left that fulfills the stereotype of the far left’s hatred of the military, what good are they?
May 18, 2010, 2:08 pmepluribus says:
Only the sterotype is just that–a stereotype. Kagan is not anti-military. She did not decide to exclude military recruiters from HLS. The policy at HLS was instituted by her predecessors, for very well-stated reasons. If the far-right wants to oppose Kagan, they had better do it on factual grounds–not on fiction. Kagan’s predecessor as Dean at HLS, Robert C. Clark, explained all of this in a May 11 op-ed at the Wall Street Journal:
May 18, 2010, 2:50 pmbailey says:
First, as has already been mentioned by others, Harvard isn’t part of the Third Circuit. Second, the Third Circuit stayed its ruling. Third, it was her decision to return the school to its pre-2002 military hating policy. Fourth, a reversion based on the Supreme Court telling you that you cannot do something is not an example of one’s respect for the military.
May 18, 2010, 3:32 pmepluribus says:
I guess if it’s an argument between bailey (who’s that?) and former HLS Dean Robert C. Clark, who speaks from personal knowledge of the issue, I’d probably go with Clark.
May 18, 2010, 4:08 pmSandy MacHoots says:
The Harvard-military kerfluffle (though Harvard is hardly alone) is one of the most contemptible things about people like Clark and Kagan. They care so much, they feel their principles so deeply that they’re willing to sacrifice their students’ job chances in the name of nondiscrimination. But they’re not willing to sacrifice the flow of money that comes from the Federal teat. That might actually have cost Clark and Kagan something . . . .
May 18, 2010, 6:17 pmepluribus says:
Sandy, there are those who are opposed to discriminatory employment policies, even when the discrimination is mandated by the U.S. military. I would like to see the military fully opened to all, regardless of race, sex, color, religion, or sexual orientation. Apparently Clark and the others who make decisions at HLS (as well as at law schools across the country) feel the same way. But they also recognize an obligation to follow the law and not to imperil the financing of other departments of the university. You may consider that contemptible. I find it commendable.
May 18, 2010, 6:39 pmSarcastro says:
I hate the NLRB.
They care so much, they feel their principles so deeply that they’re willing to sacrifice American citizens’ job chances in the name of nondiscrimination.
Freedom to contract in exile!
May 18, 2010, 6:50 pmCDR D says:
I’m not so much concerned about the political “hardball” tit-for-tat, although it would seem deserving and fair for the Repubs to turn the worm on the Dems in that regard.
What bothers me is Estrada’s obsequience, when all he should have done is stay quiet. What in hell does he think he will get for his supplication? He’ll get NOTHING except a poke in the eye. That’s how the Dems reward Repub attempts to “reach across the aisle”.
Estrada is a fool.
May 18, 2010, 8:57 pmSandy MacHoots says:
I think you mean the EEOC. The NLRB, as Prof. Bernstein could probably tell you, has a long history of cooperating with segregationist labor unions.
In any case, I find this analogy pretty bizarre. The dean of Harvard law school refused to follow the law. She was willing to resist so long as it was only her students who suffered. She traded in her principles as soon as it would have cost her personally — as by standing up to the Harvard administration and getting herself axed. Maybe I’m missing something in your point.
No, they didn’t “recognize an obligation to follow the law.” They were coerced into doing it by threats. You think it’s commendable that they’re willing to sacrifice their students but not their federal largesse? It’s okay to make sacrificial lambs of your students but not your colleagues in other departments? I suppose we just disagree. I prefer my civil rights heroes to put their own asses on the line for their convictions, not the students for whom they should be acting as fiduciaries.
I seem to recall there were a few law schools that stuck to their guns on this issue, and turned down federal aid rather than capitulate. But they weren’t the wealthy Ivy League ones, and I don’t expect that Kagan would have liked to sacrifice her own cushy job at America’s wealthiest university to teach at one of those places, where the prestige and money would be a lot less.
May 18, 2010, 9:22 pmSarcastro says:
And that’s all they do!
May 18, 2010, 11:44 pmElliot says:
I think the outright ban was mandated in legislation by Congress and signed by Clinton. Clinton then mandated the DADT directive as the administrative mechanism for implementing the ban.
Note HLS banned neither administration nor congressional recruiters.
May 18, 2010, 11:50 pmCareless says:
A) you and I have no idea how the country would have gone on without a constitution B) the point I’m responding to is someone saying that the Constitution does not do any of that C) if you can’t be cynical about the arguments lawyers will make in court, there’s something wrong with you.
May 19, 2010, 12:11 pmMichael B says:
“I think Mr. Volokh’s approach is right. I doubt, however, that the Republicans will “persuad[e] the public that the Republicans’ vision of the Constitution is sounder than the Obama Administration’s vision of the Constitution” in the confirmation process in part due to Republican senators (and their surrogates) being unable to articulate these vissions, and the duifferences between them, in a compelling way.” tk
If they cannot articulate such a difference in a compelling manner then they should be among the first to go upon their next electoral event – as with Bennett of Utah who was “nice” and “collegial” and “gentlemanly,” and, as such, effectively served as a credulous patsy.
Credulity is the most elemental social/political “sin” of contemporary classical liberals and conservatives. Their haplessness, ignorance and apathy are by-products of that still more basic corruption – and credulity is in fact a type of corruption in the current social/political arena writ large.
May 19, 2010, 3:33 pmtk says:
Michael B:
Maybe I’m unduly pessimistic, but I don’t have a lot of faith in any Senator’s ability to put forth a cogent constitutional argument during the hearings. I think the hearings are a joke, or at least they have often been in the past.
May 19, 2010, 6:26 pmsticky says:
I think there may be an error in the assumption that political actors want to block the nomination. The goal of politicians is to be re-elected, and to be re-elected politicians need the support of their party’s base (for fundraising and GOTV). The base isn’t doing this kind of cost-benefit-analysis about whether Kagan is a good nominee, what’s the opportunity cost of attacking her, etc. They just want Obama to lose. To appease the base, the Senators have to pay lip service about the possibility of playing hardball.
May 20, 2010, 11:15 am