A friend sends this email:
So, I have some friends and family that want me to start a small revolution over the nomination of Elena Kagan for Solictor General. What do you think of her?I am sorta scared that this is definitely a prequel to the replacement of Ginsburg. I’m thinking Kagan is perhaps left of Ginsburg too?I thought this might be right up your alley.Thanks,Josh
My response? No: neither Josh nor conservatives generally should oppose Elena Kagan’s nomination to be the United States’ Solicitor General.
Dean Kagan might be more leftist than Justice Ginsburg or whomever she might replace on the Court (emphasis on both mights), but being on the left (or on the right) does not disqualify someone from being the Solicitor General. To get through this current nomination, Kagan should demonstrate that she is qualified to act as the federal government’s advocate before the Supreme Court. This includes demonstrating a willingness to defend the all of the laws of the federal government, including the laws she disagrees with. She has demonstrated that ability in her nomination hearings.
Josh’s key concern isn’t Kagan’s qualification to be Solicitor General, though. Rather, Josh suspects that Kagan, the outgoing dean of Harvard Law School, is in line to take a spot on the Supreme Court when the next vacancy occurs. Several legal observers share his suspicion.
Opposing Kagan’s current nomination would continue a unfortunate, harmful D.C. pastime. The game—blocking your opponents’ potential Supreme Court nominees—goes something like this.
- Identify rising legal stars in the opposite political or judicial camp.
- When a president nominates these rising legal starts to “pipeline” positions that could lead to a seat on the Supreme Court, fight their nominations with every substantive complaint and procedural maneuver you can manage. (The public doesn’t pay much attention to this round of the game, so if you want to defeat nominees that would be hard to oppose in the attention-grabbing Supreme Court nomination round, this is your chance. Be sure to oppose the nominations of women and racial minorities with zeal.)
- Don’t let your guard down when you defeat one nomination; you can’t let anyone through. That way, the president will be forced to nominate someone you like (or at least someone you like better than the nominee you defeated).
President Bush’s nominees were often the pawns in this game. Peter Keisler’s nomination was defeated this way. Miguel Estrada’s, too. (His particularly distasteful ordeal was recounted here. It’s noteworthy that he has endorsed his Kagan, his former classmate, in her nomination.) Kagan herself has been subject to this before. Her nomination by President Clinton, to the D.C. Circuit in 1999, was defeated this way.
But the nation’s judicial process is more than a game, and it does not benefit us when our judges (and those in prominent legal positions) are forced through a tit-for-tat nomination process. Qualified and interesting candidates get culled from the nomination pool (or never let themselves be considered). Lawyers who might otherwise advance legal debate silence themselves, fearful of creating a record for the opposite side to fulminate against. Blameless individuals must endure name-calling and invective that is disrespectful of them and the judicial process.
Beyond the negative effects of this game, the players in it seem to take a dim view of the president’s prerogative to nominate individuals whose views fit his own. The president, duly elected by at least 270 electors, is entitled to nominate qualified individuals whose understanding of the law and the Constitution fits his own. As we have heard many times, “elections have consequences.” Though it may be hard for electoral losers to accept, a key consequence of a loss at the ballot box is the loss of the ability to put their preferred nominees on the bench. And it’s not appropriate to do an end run around this presidential prerogative by opposing potential judicial nominees at an earlier stage.
But the electoral losers should take heart: in America, neither of the major parties is ever out of power for long. Today’s conservative minority, loud while on the outside looking in, will be tomorrow’s conservative majority. When the White House is again in Republican hands, conservatives will (rightly) talk about the president’s right to nominate the sort of judges he promised to nominate. They were talking that way just last year.
We should not be naïve: this game did not start with Obama’s inauguration. Or Bush’s or Clinton’s, for that matter. It likely will not end. Democrats will rage against Republican obstruction this term (ignoring their own obstruction, the way this blog post seems to), and Republicans will rage again in a term or two. Perpetuating the game, however, harms America and its judicial process. We should not aid and abet in that harm.
Note: This post was edited for style and for spelling errors on February 26, 2009.