No Justice is an Island
This spring, after President Barack Obama nominated his solicitor general, Elena Kagan, to fill the Supreme Court seat Justice John Paul Stevens vacated earlier this summer, speculation about Kagan’s confirmation hearings before the Senate Judiciary Committee abounded. Some predictions and assessments included serious questions about judicial philosophy and demeanor and the proper way in which the Senate should exercise its constitutional advice and consent duties, while others took a less serious approach, looking at social and political issues the nomination and hearings might raise. (All of which existed in the shadow of Kagan’s own view that the “confirmation mess” is a “vapid and hollow charade” that serves “little educational function.”) Katherine Miller’s post at Vandy Right was more of the latter variety, and I offered a comment, reprinted here with minor revisions:
Something to remember about the appointment of new Supreme Court justices is the role of time. President Obama’s nominee, when confirmed, will replace what we today recognize as a liberal Justice Stevens. The Court may retain its current balance in the moment, but Kagan will be on the Court much longer than Justice Stevens. That’s obvious, but the point is that even if Kagan is a Stevens clone, it’s like reelecting Stevens to another life term (and she very well may be more liberal than he). And during that term, other justices will depart, and there is no guarantee that they will be replaced by those with similar ideologies. Justice Sotomayor and Kagan could be the leaders of a new liberal majority that won’t blossom for a decade or more. For those who are inclined to go to political battle over these sorts of things, that a nominee is replacing a departing judge of similar ideology is insufficient grounds to lay back and say, “oh, no need to worry about this one.” Time is the essence.
Stevens is a great example of this. President Gerald Ford, now out of office for decades and dead for a few years, appointed Stevens to the Supreme Court in 1975. Even if Barack Obama gets reelected and lives to be as old as Moses, the two justices he appoints in his first term alone will be living embodiments of his legacy for many years after he is out of office. (I’m bracketing for now the separate discussion of how well nominees carry out the policy goals of their appointing presidents. See William H. Rehnquist, The Supreme Court (Vintage Books 2002))
On a related point to the related point, I feel it’s important to appreciate just how liberal (or not liberal) a justice is Stevens. Appointed by Ford, Stevens seems to hold liberal political views, and as a skilled jurist, he reaches liberal political outcomes (I’m bracketing the separate discussion of method versus outcome and whether judges begin with a conclusion and use the law to work backwards from it), but he is, in my view a judicial conservative. Yes, a moderate one, but unlike his colleague, Justice Breyer, who seems to be running a think tank and policy center out of his Supreme Court chambers, Stevens sticks to the traditional methods of interpretation. His reasoning and methods are quite traditional. Yes, he references legislative history– surely to the chagrin of Justice Scalia– but the venerable Justice Rehnquist wasn’t a stranger to the legislative history either. In many ways, Justice O’Connor (and in some weird ways, Justice Thomas) can be seen as a less conservative justice than Stevens.
For some more authoritative statements about Stevens’ position on the ideological spectrum, including the view that the political ground basically shifted under Stevens’ feet to make him look more liberal in comparison to his increasingly conservative colleagues, sift through http://f11f.wordpress.com/2010/04/02/friends-of-f11f.
With this afternoon’s Senate confirmation of Kagan, by a vote of 63-37, we have perhaps the most diverse set of Supreme Court justices in American history. See also here and here. But see here. In reflecting on Kagan’s nomination, it is not clear that we understand the Senate’s proper exercise of its constitutional advice and consent duties any better today than we did in 1788. In that year, Alexander Hamilton offered his views in three writings, Federalist #76-78 (which Senate Minority Leader Mitch McConnell referenced on the Senate floor today). For relevant excerpts of Hamilton’s writing, see here. Your thoughts on the handful of topics raised here are welcome below. For further relevant reading and viewing, see C-SPAN’s collection here.