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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.

By Ezra Klein  |  May 11, 2010; 11:29 AM ET
Categories:  Legal  
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Next: You can't just say no


Do we ever really know someone with certainty before they actually get the job?

Ms. Kegan knows the law. The way I see it, if I had a case going before the Supreme Court I would want a justice who knows the law, who knows how to interpret the meaning of statutes, to decide my case.

And finally, she can't be any worse than Justice Scalia. Any appointment is better than him, so we can't lose.

Posted by: AnnsThought | May 11, 2010 11:48 AM | Report abuse

Do we ever really know someone with certainty before they actually get the job?

Ms. Kegan knows the law. The way I see it, if I had a case going before the Supreme Court I would want a justice who knows the law, who knows how to interpret the meaning of statutes, to decide my case.

And finally, she can't be any worse than Justice Scalia. Any appointment is better than him, so we can't lose.

Posted by: AnnsThought | May 11, 2010 11:50 AM | Report abuse

This is about the 5th time I've heard the "Kagan is just like Obama" and I'd be fine with that.

That being said it would have been nice if she didn't backtrack for political reasons on her statements in 1995. I'm sure she'll be called on the carpet for that and it would have been refreshing if she had stuck to that ideal.

Posted by: visionbrkr | May 11, 2010 11:52 AM | Report abuse

Is it possible to have less of Kagan on this site?

I guess it was not long time ago Matt talked about how Washington DC gets obsessed with Supreme Court picks but kind of ignores Fed Reserve appointments and in general economic news.

We are having lot of consequential developments (not necessary problem solving in all respects) on the other side of the pond in Europe and looks like Americans are bit oblivious to those developments even though those are likely to have more impact on our immediate daily lives than possibly Kagan.

I guess this blog is 'the DC establishment now' so may be Ezra is doing what is expected of him here....

Posted by: umesh409 | May 11, 2010 11:54 AM | Report abuse

comparing one Harvard Law school graduate to another is not really helpful. The question really ought to be: is Elena Kagan qualified to join the SCOTUS? That is what the Senate Judiciary committee looks into, no? Give those guys a chance to do their jobs, without a side-show of clever "journalism."

Posted by: rmorris391 | May 11, 2010 12:00 PM | Report abuse

You know, it's not unprecedented for a former President to be nominated to the Supreme Court. Obama will be older than the average nominee when his theoretical second term is done, I do think he'd be a hell of a justice. And while I think that as a political animal he's generally a center-left sort of guy, I think that he'd be the type of justice that would drift left after he was confirmed.

As for Kagan, I just don't understand the frustration because this is exactly the type of nominee that our system encourages. The things that liberals didn't like about Roberts or Alito weren't things Conservatives were proud that they had to deal with (for the most part). Roberts and Alito played the same game of being as blank a slate as they possibly could, and any specific statements or stances they had taken in their lives weren't assets, but challenges to manuever around.

This is the bed we've made by politicizing the Supreme Court (and the Court's own actions in politicizing its decisions). Until something changes we're going to see nominees like Kagan, who are clearly smart and clearly accomplished, but are Sphinxs as to their personal beliefs.

On a personal note, can you imagine trying to be friends with someone in their 30s who thought they might want to be a Justice some day? Cagey about any subject and non-committal about any of their beliefs? Man, I would find that super frustrating, and kind of boring.

Posted by: MosBen | May 11, 2010 12:08 PM | Report abuse


"Do we ever really know someone with certainty before they actually get the job?"

Of course not. But rarely is any hiring decision done entirely on faith.

Maybe there's 10-20 percent uncertainty on the particulars, but usually there is some clear sense of the big picture -- and quite a bit of due diligence. Maybe in time Kagan's nomination will receive the scrutiny that it deserves.

Posted by: JPRS | May 11, 2010 12:08 PM | Report abuse

Jeffrey Rosen? The anti-Sotomayor dude?

Posted by: kingsbridge77 | May 11, 2010 12:17 PM | Report abuse

"It both increases the likelihood of a deal and increases your chances of winning the PR war if a deal falls apart."

Hasn't the past year and a half presented some compelling evidence that this is simply not true? Deals have fallen apart left and right, and the fist party has won the PR fallout every time.

Posted by: AaronSVeenstra | May 11, 2010 12:28 PM | Report abuse

Obama would be a good supreme court justice? He has less experience than Kagan. He sat in a rascist church for 20 years. He constantly shoots his mouth off about rascially charged events without knowing any of the facts. So far as president he has spent an unprecedented amount of money and we still have 10% unemployment. Let's not forget that he is Mr. spread the wealth as if people get ahead in life by accident and all their hard work and sacrifice counted for nothing. Thanks but no thanks. I'll take the token lesbian any day over Obama.

Posted by: peterg73 | May 11, 2010 12:41 PM | Report abuse

Interesting, perceptive analysis.

Posted by: stuartlevitan | May 11, 2010 12:47 PM | Report abuse

I meant Ezra's, not peterg73's!

Posted by: stuartlevitan | May 11, 2010 12:48 PM | Report abuse

Thank you, Ezra.

The fact that Kagan is just like Obama is exactly why she should NOT be confirmed as a Supreme Court Justice.

You have made the point quite clearly. I appreciate it.

Posted by: etpietro | May 11, 2010 1:03 PM | Report abuse

I've done a lot of interviewing/hiring, and almost never does the interview provide anything more than provide an insight (not a guarantee) into how they think and how they might interact with others in both positive and negative ways. Who could have guessed how John Paul Stevens would make his mark on SCOTUS when he was appointed? Or Earl Warren? Or William Rehnquist?

I'm already 'over' Elena Kagan. After much too much media speculation, she will be approved. Several years later we might be able to discern how she thinks, writes, and votes.

Yglesias is right: Fixed SCOTUS terms, with an age limit would provide a far less 'gameable' court. Lifetime appointment makes the stakes way too high.

If Obama-like is Obama's strategy, he'll likely be disappointed - like many POTUS holders in the past, independence makes for unpredictable outcomes quite often.

Scalia Thomas were predictable, and Alito as well, but Bush did get away with a stealth candidate in C.J. Roberts. Kagan, not so much: she'll be the moderate center-left candidate Obama wants because of his ill-conceived perception that a 'can't we all get along' approach to governance is appropriate for our times. Where's the beef?

Posted by: JimPortlandOR | May 11, 2010 1:22 PM | Report abuse

Kagan is known for strongly favoring taxpayer funded genocide of the unborn, and, thereby, the slug in the White House hopes to keep the billions flowing to Planned Parenthood from his Big Insurance Big Pharma insurance scam.

"The bill will also provide billions of dollars in additional aid to community health centers" New York Times 4/16/10

Posted by: kwoods2 | May 11, 2010 1:22 PM | Report abuse

There is one reason and one reason only that the slug in the White House nominated Kagan, and that is because he knows that his unconstitutional mandate of requiring all Americans to pay for genocide of the unborn is headed to the SCOTUS.

Kagan is known for strongly favoring taxpayer funded genocide of the unborn.

Kagan and the slug vigorously fight for the following heinous killing.

"Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms;everything but the head. The doctor kept the head right inside the uterus. The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall....The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used."

Posted by: kwoods2 | May 11, 2010 1:25 PM | Report abuse

we have seen the husbands and wives of all the supremes, when do we get to see kagan's?

Posted by: pervleft | May 11, 2010 1:29 PM | Report abuse

The court is made up of four moderates, one conservative, and four extreme conservatives. .

Posted by: Hopeful9 | May 11, 2010 1:32 PM | Report abuse

kagan and hussein ARE NOT ALIKE. she grew up with a gold spoon. he grew up a hood rat. then, the US gave him the best of everything, free. That is why he wants to destroy it. It reminds him of where he came from in kenya, indonesia in those muslims schools. Even though his typical white granny paid for everything for him he was still a hood rat.

Posted by: pervleft | May 11, 2010 1:32 PM | Report abuse

They are fellow travelers. They think alike. They both come from different backgrounds, but they are clones ideologically. Ezra Klein is correct. As bad as Obama is to the presidency, Kagen will be as bad to the SCOTUS.

Oh, well. We knew we were screwed when Obama got elected, we just keep finding out badly.
Giving him an unhinged out of control rubber stamp congress is proving worse and worse with each passing day.

Posted by: thelaw1 | May 11, 2010 2:25 PM | Report abuse

Both despise the military. Who would have thunk it? lol

Posted by: cschotta1 | May 11, 2010 2:28 PM | Report abuse

We need some one who understands the constitution, not just the law. Kagen will see laws she likes and doesn't like. Let's hope she uses the constitution to guide here and not her 'feelings' as Obama is hoping she will.

Since many extreme liberals view the constitution as an obstacle (including the president), my fear is that Kagen will use her knowledge of the law to subvert the meaning of the constitution. I believe she looks at it as a document to skillfully get around, not follow.

Posted by: thelaw1 | May 11, 2010 2:29 PM | Report abuse

I agree with thelaw1 above, but have a problem with those of the above posts who say that Obama is "cool" and "listens to both sides etc." This is the side of Obama you see on MSM. What you do not see is what Obama says to groups that are picked just for him. In other words, his followers. There,he says many things that are very bad. For instance, in his speech to those graduating last week-end from Hampton University he said even though the Supreme Court ruled the FCC could not regulate the internet, he was going to have the internet made a utility so the FCC COULD regulate it. He further stated he wanted to get rid of blogs or statements that were against him calling them liars. Not only was that a direct shot at the Constitution, but it was one of the few truths The Liar in Chief has ever said! He only says the truth when he thinks no one is taking it down. Not all of "his" are the idiots he makes them out to be. They are not all the choir being sung to, so to speak. They have brains, they listen and they know what he is doing. Like many of us, they do not approve.

Posted by: annnort | May 11, 2010 3:19 PM | Report abuse

Aren't there any columnists "Better than Ezra!!!"

Posted by: Dog11 | May 11, 2010 4:09 PM | Report abuse

Obama said last time that Supreme Court Members should "look like America."

So I guess America looks like androgynous, lesbian socialists who have spent their entire lives in Ivy League academic bubbles.

Another member of the Obama circus.

Posted by: pgr88 | May 11, 2010 4:44 PM | Report abuse

pgr88 -

exactly right. more ivy tower cluelessness from the teleprompter-in-chief. i can't wait til this impostor is gone for good.....

Posted by: subframer | May 11, 2010 10:17 PM | Report abuse

pgr88 -

exactly right. more ivy tower cluelessness from the teleprompter-in-chief. i can't wait til this impostor is gone for good.....

Posted by: subframer | May 11, 2010 10:18 PM | Report abuse

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