Elena Kagan’s nomination to be S.G.

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.

  1. Identify ris­ing legal stars in the oppo­site polit­i­cal or judi­cial camp.
  2. 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.)
  3. 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 262009.