Barack Obama picks himself for the Supreme Court
In a very strange essay from February, Jeffrey Rosen argued -- presumably facetiously -- that Barack Obama should "nominate himself to replace John Paul Stevens." The reason? Obama's cerebral, detached style, his background, his deference to Congress and his temperament all spoke to the needs of the bench better than the needs of the White House. "In the end," Rosen wrote, "Obama's legacy on the court might surpass his legacy in the White House."
That was patently absurd for all the obvious reasons. But in choosing Elena Kagan for the Supreme Court, Obama might have done the next best thing: nominated someone exactly like himself.
When Obama announced Kagan's nomination, he praised "her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, 'of understanding before disagreeing'; her fair-mindedness and skill as a consensus-builder." This sentence echoes countless assessments of Obama himself.
Obama is cool. He makes a show of processing the other side's viewpoint. He's more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard's Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. "The things that frustrate people about Obama will frustrate people about Kagan," says one prominent Democrat who's worked with both of them.
Understanding this is the key to understanding the Kagan pick: Obama's theory of negotiations is that extending an open hand makes it easier for people to see if the other side has made a fist. It both increases the likelihood of a deal and increases your chances of winning the PR war if a deal falls apart.
This is a theory that frustrates many liberals who want to see a more confrontational tone from the president, but it's core to Obama's theory of winning a negotiation. And the need to win negotiations is core to Obama's -- and everyone's -- theory of the Supreme Court. With four liberals, four conservatives and one center-right justice who's willing to play the swing vote, a skilled legal negotiator who can put together a majority is more important than a sharp legal thinker whose blistering dissents can cure liberals of their Scalia envy.
That said, it's not clear that majorities are dependent on an individual justice's skill at negotiation. The legend of Anthony Kennedy's indecision and susceptibility to persuasion is probably just that -- a legend. "Is there any evidence whatsoever that Kennedy is susceptible to lobbying for votes, subtle or otherwise?" asks Scott Lemieux. "A fairly large literature has emerged about the internal workings of the Rehnquist Court, and I've read a painfully high percentage of it, but I'm not aware of any documented case in which the influence of another justice has caused Kennedy to switch his views."
And speaking of a justice's views, Glenn Greenwald and others have made a compelling case that we simply don't know that much about Kagan's. Her defenders point to her long history working for Democratic politicians and clerking for liberal judges as a record in itself, and they're not wrong on that. But at best, it's evidence of an orientation rather than a guide to Kagan's thinking. That's why Kagan's hearings will be an uncommonly high-stakes affair, as they're really the only avenue open to us to learn about her judicial thinking.
That should be fine, as Kagan has previously stated her belief that nominees should be extremely forthcoming during confirmation hearings."It is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues," Kagan wrote. But now the administration is walking Kagan's views on that question back.
It's worth pausing for a moment to look at where we are: A candidate who has impressed everyone she's ever worked with and demonstrated enormous political talents at every position she's ever held but doesn't have the sort of public record that we associate with people vying for the job she's seeking. Sound familiar? But just as we needed the campaign to learn about Obama, we need the Senate hearings to learn about Kagan. Testimonials and analogies are no substitute for hard information.
Photo credit: Official White House Photo by Pete Souza.
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