Nightmare for the left: Getting ‘soutered’ by Kagan
WITHIN HOURS of Elena Kagan’s nomination to the Supreme Court Monday, it was clear that her confirmation battle would — at the outset, anyway — represent a departure from President Obama’s previous nominee, Sonia Sotomayor: Kagan will have to overcome skepticism from the left along with the expected skepticism from the right.
The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side.
There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised.
Most Republicans privately consider Kagan an acceptable Democratic nominee, and have shown no appetite for a filibuster. The frustration has come mainly from the left. On Monday, the liberal group MoveOn.org asked Democratic senators to refrain from endorsing or praising Kagan too effusively in hopes of gaining leverage to force her to commit to positions absent from her record.
Both reactions are reasonable. It’s unlikely Republicans could block her confirmation, even if they tried. Kagan’s carefully guarded views make her uniquely suited to survive the rigors of the modern confirmation process.
Ever since Robert Bork’s strident conservatism was used to defeat his nomination to the Supreme Court in 1987, his successors have gone to ridiculous lengths to mask their beliefs or propagate the fiction that they’ve never considered legal questions that would undoubtedly come before them.
Kagan seems like the ultimate embodiment of this process. She appears unassailably “mainstream’’ in the sense that she has never uttered any belief or conviction that could be held up as evidence to the contrary. She may be the least likely of any candidate, ever, to get “borked.’’
The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.
The real problem, though, is that liberals don’t trust her. Several commentators have compared her lack of a paper trail to that of Harriet Miers, who was briefly put forward by George W. Bush. But Kagan’s distinguished career clearly qualifies her for the job, and Miers was not.
A better illustration of liberals’ fears would be David Souter. Souter was nominated to the court by George H.W. Bush and was thought to possess many of the same qualities that make Kagan attractive. His beliefs seemed squarely in line with his party’s, he was recommended by those familiar with his record as a judge on the First Circuit Court of Appeals, and he seemed a safe bet for confirmation. But Souter proved far more liberal than anticipated.
Souter slipped past conservative gatekeepers because of where he served. The hot-button legal cases that the Supreme Court takes up — on race, abortion, religion, homosexuality — tend to come out of the West (the Ninth Circuit) or the Deep South (the Fifth and Eleventh Circuits). Rarely do they come from the First Circuit in the Northeast. Thus was Souter able to amass a substantial record of legal opinions without revealing his positions on issues that would later divide the Supreme Court. Like Kagan, he was essentially untested on important matters of federal law, and ultimately disappointed the president who put him there.
Souter’s example led to the professionalization of the scouting and nominating process for conservative judges. It’s no coincidence that every subsequent Republican nominee has been a fully credentialed conservative.
Miers is the lone exception. She is remembered as having been uniquely unqualified, but it was as much her lack of a written record that prompted conservatives to turn on her. They feared another Souter.
With a first-class intellect and sterling credentials, Kagan seems certain to excel in her hearings. But if she does reveal herself to be further to the right than everyone expects, and the concern becomes opposition, then liberals may yet get their Scalia.
Joshua Green is senior editor at The Atlantic. His column appears regularly in the Globe.