Friday, June 4, 2010

Some thoughts on Elena Kagan

Over the past several weeks I've been following the discussions around the prospect, and then the reality, of Elena Kagan's nomination to succeed John Paul Stevens on the U.S. Supreme Court; and I've found that I have a lot of thoughts about it. I'm not a legal scholar, or empirical scholar of judicial behavior, or Supreme Court watcher – so the following should not be regarded as carrying much authority. (Also, I should note that I know and work with a couple of people who are friends of Kagan's; I've never met her myself).
It seems to me that much of the uncertainty about Kagan's merits as a Supreme Court justice, and much of the anxiety about and opposition to her from the Left, revolves around considerations of efficacy and/or considerations of dependability; and of how to gauge both.
Efficacy is a matter of
a) being able to write opinions (and less importantly though still importantly, interacting personally with colleagues) that will allow one to put together majority coalitions for (more) liberal decisions
b) matter of being able to use those decisions for which one wins a majority as a vehicle for moving the court's jurisprudence left (i.e. back to the center), building up a liberal jurisprudence (this is the sort of thing that Roberts seems to be asterful at on behalf of conservatism)
c)when it is impossible to put together a majority, being able to write (intellectually and rhetorically – but mainly intellectually) powerful dissents that might, in the future, provide guideposts and bases for more liberal decisions.
How good would Kagan be at these? How do we know?
a) she seems to be very good at the politics of human relations: she seems almost certain to forge good relationships with her colleagues. She also is, by all reports, very smart – and smart in a number of ways: politically, socially/emotionally, legally. So she seems likely to be the sort of judge who would be good both at the politics of putting together coalitions – and at crafting opinions that will be acceptable to such coalitions. (The latter seems more significant to me, though in both cases how much influence Kagan will actually have, as the most junior justice – and therefore, as someone who will likely only be assigned opinions if the senior justice on any coalition [which in effect will usually mean Kennedy, though in some rare cases Scalia] decides to do so. On the other hand, my admittedly largely groundless impression of the various personalities involved makes me think Kagan could be very good at maintaining good, and politically useful, relations with Kennedy and Scalia) (Mind you, Scalia and Ginsburg get along swimmingly, but that doesn't seem to have much effect on the court's jurisprudence. But I think Kagan is likely to be a more aggressive and self-assured – and thus more powerful – justice, politically and jurisprudentially, than Ginsburg)
b) again, based on the second-hand and biased picture I've been able to put together of Kagan, I think she could be very good at this. Certainly, if anyone on the liberal side of the Court were able to act as a liberal counterpart and answer to Roberts in this respect, it would be Kagan (assuming she is confirmed). And, while I also admittedly know very little about other possible nominees, she seems to me more promising in this regard than most of the other potential Democratic Supreme Court nominees. Not only is Kagan smart: her legal work (small in volume as it is) suggests that she has a particular talent for perceiving the legal lay of the land – the way that the law is evolving, and the significance of this evolution both to the law itself and to the larger political situation. This ability to see the big picture – and to see the big picture in dynamic terms (that is, in terms of shifts over time and their likely implications and repercusions) – is a particularly important skill if one wants to move the Court's jurisprudence, gradually and subtly and effectively, over time.
So, there is reason to be optimistic –and to think Kagan the best candidate – in these regards.
c) Things strike me as rather murkier here. Kagan is cautious, and not outspoken: it is unclear whether she would be inclined to engage, or very good at engaging, in this sort of dissent. And it sees likely that, at least in the short-term, and possibly in the long-term (depending on whether Obama is able to appoint replacements for any of the conservatives on the Court), dissenting is something Kagan is likely to do quite a bit of, no matter how good she is at a) and b). So a capacity for issuing good dissents will be important to her success and impact as a Justice. On the other hand, it may be that she would be a good, even a great, dissenter (though I tend to strongly doubt the latter). And someone who would have been particularly good at dissenting (Pam Karlan, for instance) would likely have been politically costly to nominate.

Dependability (which is to say, how she will vote, and how she will construct her opinions, in terms of “ideology”. In other words: how liberal she will be). Here, as many have pointed out, it is harder to be confident, both because we have less of a way of knowing, and because what we do know is less promising. Still, it is worth bearing in mind that :
a) she is a life-long, committed Democrat. Many SC nominees either have had weak-to-no partisan affiliation, or have served under administrations of both stripes; Kagan has only worked for Democrats, and has done so consistently and significantly over her career. If Obama was going for post-partisanship here, he chose an odd way of doing it.
b) at the same time, being a Democrat is different from being politically liberal; and it is also, certainly different from being judicially liberal. In particular, there is a fear that Kagan will be too favorable toward executive power, both because a member of her own party (and a long-ter colleague/acquaintance and recent boss) is in the White House – and because her jurisprudential leanings suggest, if not a penchant for broad executive power, at least a pragmatic openess to it. So, too, her involvement in the Obama administration's disappointing actions regarding civil liberties (i.e. detention and due process) for suspected terrorists has made many worry about her commitment to civil liberties. And the lack of a paper-trail giving indications of firm, pronounced commitments to principles has increased the worry.
c) now, it must be borne in mind that much of Kagan's record has been shaped by the roles she has filled. Her perspective, the pressures on her and the opportunities available to her, will be different when/if she takes a seat on the Court. How might we expect this translation to affect her views (granting that we don't have a strong sense of those views, but can assume them to be broadly, but perhaps not strongly or uniformly, liberal)?
d) first, we may note that it has rarely happened that a Supreme Court justice appointed by a Democratic President has become particularly conservative on the bench (the only case I can think of, over the past half century, is Byron White. Before that, Frankfurter and Jackson were less uniformly liberal than their association with FDR and the New Deal might have led people to expect, but they were not really conservatives in any robust sense of the term.) True, some justices have been less strongly or effectively liberal than one might have hoped; this can be attributed to situational, temperamental, or philosophical factors (the general shift of the Court to the Right, the judicial mild-manneredness of Ginsburg and the intellectually independent and pro-business inclinations of Breyer). But it has been rare for a Justice appointed as a “liberal” to either turn out to be fairly conservative (in contrast to the inadvertent Republican nomination of independent-to-liberal justices such as Warren, Harlan, or Souter, on the other side), or to gradually become staunchly conservative over time (as happened, in the opposite direction, with Blackmun and Stevens). The general tendency has been for Justices, if they alter position at all, to become more independent of the parties and presidents that appointed them; and, if anything, to become more liberal (even more generally conservative Justices such as Kennedy and O'Connor have wound up being less predictably conservative, more significantly liberal at crucial moments, than one would expect of Reagan appointees). Kagan is extremely unlikely to emerge as a Scalia of the Left (which may be a pity, though there would be a downside to such a Justice), much less a Thomas of the Left (which I don't think is a pity).But nor is she likely to be a surprise like Souter, or to grow into a conservative as Blackmun and Stevens grew into liberals, or to be as unreliable as Kennedy or O'Connor (in making these predictions, I am assuming no fundamental alterations in the balance and dynamic of the Court, or in Kagan's personality and commitments to the extent that these are known).

So, it seems to me likely that Kagan could be as effective as any Justice Obama could appoint at this time, and could, given the right circumstances (a long tenure during which the Court shifts slightly or more-than-slightly to the Left) be very effective indeed. Regarding dependability, things are less clear and there is less basis for confidence; but there still seems (to me) to be more reason to think that she will wind up being more liberal than her record thus far suggests, than that she will turn out to be, or over time become, more conservative. And, in the event of a political and/or judicial shift to the Right (i.e. the GOP re-taking the White House, and then appointing successor[s[ to Ginsburg or Breyer), I would expect Kagan to be a dependable fighter of rear-guard action.
One last point, related to those above, is worth addressing. Many liberals have objected to Obama's choice of Kagan, not because she is particularly conseravtive, but because she is less (dependably) liberal than Stevens, and so her appointment will move the Court to the Right (just as O'Connor's replacement by the more strongly conservative Alito did). TO some extent, I think this worry misguided; and to some extent, I think it valid – but nonetheless, not a powerful argument against Kagan.
a) I think it is a misguided worry to the extent that, in most cases, it seems to me likely that the split on the Court will be between liberal and conservative wings in which Kagan sides with the liberal wing; wherever Kagan would not side with the liberal wing, it seems to me unlikely that the liberals could put together a majority in any case. Remember, putting together a liberal majority would require winning over Kennedy (or another conservative), and retaining all the “liberal” members of the Court. It is hard for me to imagine a scenario in which Kennedy would be winnable, but Kagan would desert the liberal side (or, in which Kagan was more likely to desert the liberal side than any other of the liberal justices on the Court).
b) a more tenable version of the worry is not that Kagan's replacing Stevens would change the voting balance of the Court, but that, given a chance to write the majority opinion, Kagan would be likely to write a more narrowly-tailored, cautious opinion than Stevens. This is a fair point. But my own hunch is that, again, the need to win and retain Kennedy will be a more significant constraint on the sort of opinion that a liberal majority would produce, than Kagan's greater temperamental caution or ideological centrism relative to Stevens. It's true that Kagan is unlikely to produce the sort of blistering liberal dissents that Stevens sometimes did. And there is value to such dissents. But they have to be very good indeed (and, the Court's future evolution has to be propitious), for them to be any more than an emotional salve to liberals. My hopes for Kagan's long-term efficacy in moving the Court back toward the center outweighs my regret that the liberal wing won't have as great a dissenter as Stevens could be (or as someone like Karlan might have been).
c) There is another respect in which Kagan's replacing Stevens will represent a loss for the “left”-wing of the Court; but this would be inescapable regardless of who Obama appointed. Stevens was the most senior Justice among the Court's liberals: whenever there was a liberal majority, or the prospect of one, he had the right to write, or assign, the opinion. This allowed him to put his own stamp on the Court's opinions whenever he was able to put together a majority – by writing the opinion; it also gave him more influence over, say, Kennedy (by having the authority to assign the opinion to Kennedy). Kagan will be the most junior justice; whenever there is a majority in favor of a more “liberal” or “centrist” decision, Kennedy (or, maybe, Scalia!) will be the senior Justice, and so will decide who writes the opinion.* This makes it particularly important that she be able to influence/win over Kennedy (or maybe Scalia) for a liberal coalition; and, as mentioned above, I think she'd be good at this. But, it is certainly the case that Stevens' replacement by Kagan will represent a loss of ground, at least in the short-term, for liberals – because anyone replacing Stevens would represent such a loss of ground.

Finally, there are two important caveats/disclaimers about the above analysis. First, it's treating liberalism and conservatism fairly simplistically – and so missing much of the worry about Kagan, which is that, while generally more-or-less liberal, she'll take a more pro-government stance on questions about executive power and civil liberties/due process rights for detainees. I share this worry – and the disappointment with and distrust of the Obama administration's handling of such issues on which it is based. On the other hand, I recognize that the basis for this worry – just like the basis for my hopes about Kagan's effectiveness and general liberalism – is pretty slight, since we've yet to hear any pronouncements “in her own voice” about such issues (with the possible exception of her testimony as nominee for Solicitor General; but the possible role of both role-considerations and political prudence in shaping her statements in that context make those statements less than dispositive.) So, on that issue, My inclination is to be either cautiously optimistic or cautiously pessimistic (or, maybe I am being cautiously optimistic by being cautiously pessimistic).
The second point is that I've largely been thinking about the issues, since Kagan's nomination, in terms of whether she is a good nominee (I think, on balance, that she is), not whether she was the best nominee. Of those candidates whom one could realistically see the Obama administration nominating, I thought that Kagan and Diane Wood were the best. Some saw the comparison between them as between a judge who was more reliably liberal and effective (Wood), and one whose effectiveness we couldn't predict and whose commitment to liberalism was doubtful. I think that it is possible that Kagan will be just as effective, and just as liberal, as Wood would have been on the Court; the issue is that, whereas Wood's liberalism and effectiveness as a judge are both well-established, we don't have evidence of either in Kagan's case (though we have some reason to be hopeful about both, and particularly the latter). On the other hand, Wood would probably have been a tougher political battle to get confirmed, and might likely have had a shorter tenure – though again, these are uncertain points.

*I suppose there will be exceptions, where there is no majority, but rather a messy plurality. Even then, though, I would expect that, while Kagan could play an important role in building coalitions and shaping the substance of the opinion, she would be unlikely to be in a position to move the Court's decision significantly to the Left.