POLITICS APRIL 9, 2010
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on February 23, 2010.
When Justice Stevens retires, what happens then? There will be a pretty efficient process. The White House will receive significant pressure from both the right and left, all of which it will basically ignore. Conservatives will want to use the Court as a rallying point for their base for the 2010 midterm elections and beyond. Liberals will not only rightly view this as their last, best opportunity to appoint a genuine progressive to the Court for a long time, but also will recognize the significant prospect that the Court will ironically become more conservative under a Democratic President with this change in membership insofar as Justice Stevens is the left’s leading strategist and seemingly has the best relationship with Justice Kennedy.
The President will want a highly qualified nominee, obviously. Beyond that, the calculation for the White House will be almost entirely political. Rahm Emanuel will have overriding control--if not minute-by-minute involvement--just as he did with Justice Sotomayor. And as with that previous confirmation, the calculus will be one of the political costs and benefits of the highly qualified candidates at the political moment in time.
Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms. It is hard to overstate the Administration’s view of the significance of the loss of the sixtieth Democratic Senate seat. The point isn’t actually that there is a realistic chance that a Supreme Court nominee would be filibustered: there are several liberal candidates whom conservative Democrats and the Republican Senators from Maine might or might not ultimately support, but they would not filibuster. Supreme Court nominees require just fifty votes for confirmation, and with a committed effort, the Administration could get a relatively wide range of candidates through.
Instead, the effect of the vote is to reduce the Administration’s political capital and maneuvering room at a time when both are in short supply. The White House specifically and the Democratic Party more generally feel an urgent need to recapture some momentum to put their domestic agenda on track. The Administration was entirely invested--and “entirely” is not an overstatement--in a sixty-vote health care strategy, which failed the minute Scott Brown won in Massachusetts. Republicans know this, and they will do whatever is reasonably necessary to prevent Democrats from regaining their footing in the run up to the 2010 elections (as the Democrats would have done to them). The White House knows that Republicans know (etc.) and it will invest whatever political capital it has in getting centrist undecided Senators to support its domestic agenda--health care, jobs, and the like--rather than leaning on them to support a liberal Supreme Court nominee.
Look at it this way. Which of these three options is going to get President Obama re-elected: (a) 500,000 new jobs; (b) expanding health care for 10 million additional Americans; or (c) Seventh Circuit Judge Diane Wood? No one--not even the most devoted members of the American Constitution Society--believes the answer is “c.”
That is not to say that the President does not care about the Supreme Court. Certainly, he does. He is a former law professor who understands the institution and its importance perhaps better than any of his predecessors since Taft. But he has a broader responsibility to the country that prevents the White House from being single-minded about the Court at a time that is politically very difficult. But even that is not to say that the Administration is going to put the Court on the back burner. To the contrary, all indications are that it intends to raise the Court’s profile. The public’s hostility to the Citizens United decision--consciously stoked by the White House--is pretty much off the charts. We’ve seen the beginnings of what may turn into a populist-style campaign against the institution. Nixon ran against the Court as pro-criminal. The Obama Administration and Democrats more broadly seem poised to paint the Court as pro-corporation, linking Citizens United with a variety of other decisions such as the Ledbetter pay case that Congress recently overturned by statute. Like criminal law issues, a “fight” with the Court over what would be framed as individual versus corporate rights has a lot of appeal to political independents.
Unfortunately for liberals, that does not equate with any significant likelihood that the President will appoint a thoroughly and avowedly progressive nominee. Don’t confuse the desire to accumulate political capital (by positioning the Administration against unpopular rulings by the Court) with the need to avoid expending that capital unnecessarily (by picking a big confirmation fight). Instead, the Administration is likely to take a hard rhetorical stand against rulings that it believes can be framed as pro-corporate, while nominating a candidate who will sail through the confirmation process.
As I suggested above, on some level, this is all about the decision whether to nominate Seventh Circuit Judge Diane Wood. If the President’s priority were to appoint a brilliant, moderately liberal jurist in whose views he has confidence (because she has a track record), he would appoint Judge Wood. No judge on the left in the country is so uniformly respected for her intellect and thoughtfulness. She is amazingly articulate, and at a hearing would be no less impressive than was Chief Justice Roberts. She will be the near-uniform choice of the groups on the left--at least those who have given up on the dream of Pam Karlan.
Judge, Seventh Circuit Court of Appeals
Judge Wood is not remotely a fire-brand liberal. Few lawyers known for their service in the antitrust division are. But because she has at least a record of decisions on hot-button issues like abortion, there would be a genuine fight over her confirmation. Committed conservatives will oppose any realistic candidate (just as committed liberals were going to oppose anyone whom President Bush nominated), but a nominee with a paper trail will put in play the moderate Senators whom the Administration absolutely needs for the rest of its domestic agenda.
The White House and Democrats on the Senate Judiciary Committee have also put themselves in a difficult position through the hearings last summer. In those hearings, Democrats described the ideal nominee as perfectly neutral on the law, embracing Chief Justice Roberts’s model of the “umpire.” So any nominee who departs from that approach, and attempts to articulate and defend a progressive model of judging and constitutional interpretation, is going to look very liberal. And on the incorporation of the Second Amendment, Sotomayor's responses were framed as entirely reflecting settled precedent rather than her own view of the law. Again, a nominee with a record of actual decisions on those issues is likely to generate additional ideological opposition.
As a point of comparison, despite a long service on the bench, Justice Sotomayor had decided almost no cases on questions of race, abortion, the death penalty, guns, and gay rights. Her rulings in Ricci.
In a world without ten percent unemployment--i.e., a world in which the Obama Administration would be more willing to embrace the fight over the Supreme Court in the way the previous administration did--I think we would soon be talking about Justice Diane Wood. But that is not the world in which we live.
To the extent there is a tie-breaker with respect to Judge Wood in particular, it is her age. In actuarial and historical terms, she’s far from old. But in an era in which Presidents seemingly put teenagers on courts of appeals to position them for the Court, fifty is the new sixty.
It is worth pausing here to consider the fantastic, sweeping success of conservatives in dramatically shifting the debate over Supreme Court nominees. Judge Wood represents nowhere near the far left wing of potential Democratic candidates, but her nomination and confirmation would require a significant investment of the Administration’s political capital.
Whereas progressives may look back on the Sotomayor hearings as a tremendous lost opportunity, because Democrats failed to articulate a vision of progressive judging, the White House is likely to take exactly the opposite view of the process’s success. The Administration’s priority last summer, and once again this summer, is not to have a debate about visions of judging. Rather, it defines success in a confirmation hearing as confirming a great nominee. The admittedly early indications are that Justice Sotomayor in fact is an extremely intelligent and very hard-working judge who shares the same values and perspectives when it comes to judging as does President Obama. Her tenure on the bench likely will be no less of a success for this Administration than Chief Justice Roberts and Justice Alito were for President Bush.
The lesson the Obama administration will take away from last summer was that it got exactly the Supreme Court Justice it wanted, without a genuine political fight. Sure, there was opposition, in the sense that there will be division over every Supreme Court nominee for the indefinite future. (Democrats certainly will rue the day that they did not embrace Harriet Miers with open arms.) But Justice Sotomayor was the left’s Chief Justice Roberts--a nominee who shared the vision of the President who appointed her, but upon whom opponents couldn’t genuinely lay a glove. Plus, the Obama administration genuinely broadened its base of political capital by selecting her.
There is no reason to believe that this summer the White House will abandon what it regards as an entirely successful model and select a nominee who will generate a significant political fight. The administration cares about the Court and wants to have a lasting impact on it while (if it can) avoiding incurring a short-term political cost in the process. This is the “have your cake and eat it too” strategy. Has anything worked better for you in the past year than the Sotomayor nomination? And why would you try to change a thing about your previous strategy?
If the Constitution allowed Justice Sotomayor to fill two seats, the White House would nominate her again. Seriously, if you are the Obama administration, what do you think has gone better?
If not Judge Wood, then who? You can look back at these two posts (here and here) on the Democratic short list for details on potential candidates, as well as this post noting that the prospects of some have faded. (“Associate Justice Eliot Spitzer” doesn’t trip off the tongue the same way it once did.) The Administration’s failure to press forward appellate nominees means that alternative candidates like Teresa Roseborough have not developed the judicial credentials that would be required to consider them seriously for this vacancy.
But we can do better than those lists. Nothing I have written above fails to scream--not merely suggest, but scream--Elena Kagan, who deserves the title “prohibitive front runner.” Super-smart and genuinely knowledgeable. Solicitor General. Formerly the tremendously successful Dean of Harvard Law School. Personally has the greatest respect of the President, in part from their shared ties to both Chicago and Harvard. Deep relationships in the Administration, particularly among those who served under Clinton. Well-known conservatives lined up around the block to support her in emphatic terms. Young! Female! Has an exceptional ability to sound extremely articulate and thoughtful without saying anything that could cause offense. No material track record on anything.
U.S. Solicitor General
Curt Levey, as you try to figure out how you are going to paint Elena Kagan as an ultra-liberal, let me introduce you to Charles Fried, who served as Solicitor General during the Reagan Administration, and Jack Goldsmith, who served as Assistant Attorney General for the Office of Legal Counsel during the George W. Bush Administration. Both will testify that you are crazy, and so will lots and lots and lots of other people. This too will be the reverse of the Roberts confirmation, in which Democrats climbed over themselves to sing the Chief Justice’s praises.
The hard-core right will raise some money inveighing against the great threat to the Republic of the nomination (filling in the nominee’s name on the press release that surely has already been drafted), and its letters soliciting donations will be used by liberal groups to boost their own fundraising, in a reprise of the Cold War military-industrial complex. These groups have to exist for some reason, and with respect to this confirmation like the last, it will be to fire off releases about the danger presented by the other that no one reads. Both sides will be smart to bank that cash rather than wasting it in a process they cannot genuinely affect.
Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. In fact, it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution. She knows a tremendous amount about the law, but she has, after all, never been a judge. It is certainly not that she lacks either vision or conviction – no one who observed her tenure as Dean would say that. Rather, her deep thinking has been very focused on her particular role at the time: scholar, dean, and now Solicitor General. Her legal writing doesn’t reflect much interest in more abstract theorizing about the law. By all accounts, she just is not doctrinaire.
To be sure, General Kagan has done a few things that hard-core conservatives will use in an amateurish-looking effort to paint her as a committed (if somehow simultaneously closet) liberal. Those will get no traction, and if anything the few examples will serve as slight Pepto-Bismol to the left’s heartburn over her nomination. First among these will be her position as Dean that the Solomon Amendment is unconstitutional and her related stated opposition to the military’s position on recruiting homosexuals. Conservatives will contend that these positions reflect an anti-military bias. But the Administration will have no trouble describing General Kagan’s position as reflecting that of Harvard as an institution--a position that was broadly shared among the nation’s elite Universities.
Opponents will try to make something of the nuances of the legal arguments Harvard joined in the Solomon Amendment litigation, which no one will understand or care about. In terms of policy, Don’t Ask, Don’t Tell is on its way out. And the Administration will gleefully offer up to reporters (and the Judiciary Committee) the many students who had served in the armed forces and whom General Kagan hosted at Veteran’s Day dinners each year to honor their service.
At the same time, General Kagan is extraordinarily--almost artistically--careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade. Now, there are obviously an awful lot of people whom I do not know. But I have never talked to anyone who talked to anyone who had a conversation like that.
General Kagan is no John Roberts, who had a public profile of studied neutrality and openness but also a history in the Reagan Administration as a clear-minded conservative. That is not to say that she is an enigma and unknown quantity where it counts. Far from it. General Kagan served in the Clinton White House and has people from that Administration who were colleagues, if not confidantes. Some of her most important relationships go back twenty-five years. Those people will have a sense of her dispositions and leanings.
But so long as the President is ultimately convinced--and I am confident he will be--that General Kagan does in fact broadly share his vision for the law and constitutional interpretation in particular, the White House will regard this ambiguity and the anxiety that it generates among the left as a good thing, not bad. The morning that Sonia Sotomayor was nominated, the Administration was extremely pleased to see the selection described as a disappointment to liberal groups that wanted Judge Wood instead. Politically, that helps their strategy of positioning the President and his nominees as moderate rather than liberal.
Judge, D.C. Circuit Court of Appeals
And are there other candidates? You bet. After only Judge Wood, D.C. Circuit Judge Merrick Garland is the most respected Democratic appointee now on the bench. Indeed, in Washington circles, he is much better known. His opinions are moderate and uniformly thorough and well-reasoned. He also has much more law enforcement experience from his significant service in the Department of Justice. He would be confirmed in a cake walk; it would be a victory lap. But the tie-breaker here is gender, for the President gets a benefit from appointing two women to the Court.
U.S. Secretary of State
The Administration will also seriously consider candidates with other backgrounds. Janet Napolitano is not one of them for the single reason that, in fact, the system did not work. Suggestions that the President would appoint Hillary Clinton are as crazy as previous speculation that Bill Clinton could get the nod, and rival the bizzaro-world lunacy of the suggestion that Barack Obama will nominate himself or give up a second term in exchange for a promised nomination by Hillary Clinton. Secretary Clinton is a great success as Secretary of State (overcoming concerns that the bitter primary fights would spill over into governing) and too old for the slot. And her strength is in her international stature, not reading cases in a judicial chambers.
Harvard Law Professor
The President is known to admire Cass Sunstein greatly. But Sunstein is the left’s Alex Kozinski or Richard Posner--although stunningly brilliant, too much of a free thinker to be nominated to the Supreme Court. If he were nominated, some of his writing--is there anything he has not written about?--would be freely caricatured. The fact that Sunstein has not been nominated to the D.C. Circuit shows that elevation to the high Court isn’t in the cards.
U.S. Attorney General
African-American candidates would be very difficult for Republicans to block; the most likely are Eric Holder and Deval Patrick. The President personally knows both well, although Holder is probably too old. But because both create significant confirmation battles (Holder over Gitmo and Patrick over liberal policies and asserted missteps as Governor), neither ultimately seems likely to be named.
Jennifer Granholm is a serious possibility. She is a Governor, giving her a background in actual governance that the Court sorely lacks after the departure of Sandra Day O’Connor. She is also a former state attorney general, which gives her law enforcement experience that cuts against accusations that she is too liberal.
That said, there is no outward evidence that she is interested in the job of a Supreme Court Justice, which is very different from holding elected office, at a time that her State is in difficult straits and needs consistent leadership. And her extended role in politics creates a genuine risk of an issue emerging that turns into a confirmation fight. Again, she would certainly be confirmed, and from what I know, she would fit the President’s model for as a Justice. But it doesn’t seem that the upsides of naming her would be enough to knock Elena Kagan off of the pedestal of the presumptive nominee.
U.S. Senator for Minnesota
The most serious remaining candidate to General Kagan might actually be someone who has not really been discussed in the published so-called “short lists”: Senator Amy Klobuchar of Minnesota. She is fantastically well spoken. She has a clear and unshrinking willingness to articulate a progressive vision. On the other hand, she (like Governor Granholm) is an experienced prosecutor. And senators are notoriously hesitant to oppose their own, particularly members who are well respected (as she appears to be). The idea that any Democratic senator or the female Republican senators from Maine would seriously oppose her (much less support a filibuster) is absurd.
If Senator Klobuchar is interested in the job (and her speeches on judicial issues suggest she would be), then a different political calculus comes into play: the balance in the Senate. The Democrats have already lost their filibuster-proof majority. But there are now conversations about whether in 2010 they might lose their absolute majority. That is not a realistic possibility, but when the President’s domestic agenda is at stake, each seat is vital, as I said at the outset. If the President appoints Senator Klobuchar, then Minnesota’s Republican Governor Tim Pawlenty gets to name her replacement in the short term and her seat is unnecessarily put into play. (The replacement would serve until November, unless Senator Klobuchar were confirmed after August 2, in which case under Minnesota law the interim appointee would serve another year, until November 2011.) If this were January 2009 and the wind were at the Democrats’ backs, it would be a very serious possibility, but this is 2010 and it is not.
Editor's note: This article has been updated.