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The Supreme Anthony Kennedy of the U.S.

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Insofar as some of the argument for Elena Kagan is based on the idea that "the most important job for the next Supreme Court Justice is to sway Anthony Kennedy, and Kagan is the nominee best able to do that," you need to separate the claim into two parts: Should we be nominating justices based on their potential to influence Anthony Kennedy? And is Kagan going to be best at influencing Anthony Kennedy?

Scott Lemieux thinks this Kennedy-centric view of the court is absurd, noting that there's no evidence that Kennedy is open to this sort of lobbying. "Some Court observers conflate moderation with indecisiveness," he writes. Dahlia Lithwick agrees. "Who knows what type of person might sway Justice Kennedy?" She asks. "William Shakespeare? His wife? Possessing the power to persuade a very complicated 74-year-old man is not the stuff of which epic constitutional careers are made." And she goes even further:

Reducing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy" is neither a powerful nor inspiring judicial vision. The selection of a new Supreme Court justice is too important to reduce to politics, and the debate over judicial ideology has to be about more than just winning.

But if you want to put all that aside, it's also not clear to me why I should believe that Kagan is uniquely placed to sway the court. After all, the decision that hangs over this nomination is from Citizens United v. Federal Election Commission, where Kagan argued the Obama administration's case and lost.

Photo credit: Collection of the Supreme Court of the United States, Steve Petteway/Associated Press

By Ezra Klein  |  May 11, 2010; 2:21 PM ET
Categories:  Legal  
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Comments

"Should we be nominating justices based on their potential to influence Anthony Kennedy?"

No.

"And is Kagan going to be best at influencing Anthony Kennedy?"

The question is irrelevant, because Kagan's job will be to reach judgements and author opinions and dissents, not influence Anthony Kennedy's position.

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

Pointing to her loss in the Citizens United case is cute, but I think it misses the importance of the difference between arguing from a position of advocacy for one side as Solicitor General and arguing from the position of a peer as a Supreme Court Justice with the greater leeway and access it would provide.

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

And can she persuade the person who is going to replace Kennedy too? Or is that the job of the one who will replace Ginsberg?

See how silly this gets?

Posted by: stevie314 | May 11, 2010 2:36 PM | Report abuse

@kw:The question is irrelevant, because Kagan's job will be to reach judgements and author opinions and dissents, not influence Anthony Kennedy's position.

Kagan's job will be to reach judgements and author opinions and dissents, that both represent her own views and are crafted in such a way as to gain the most support from the other justices on the court. I am not sure we can judge if Kagan will be good at this (Dianne Wood has demonstrated this skill on the court of appeals). My guess is that she will, but it is just a guess.

Posted by: srw3 | May 11, 2010 2:40 PM | Report abuse

Kagan didn't lose Citizens United; that case was lost before it was argued.

The issue decided was not even presented in the case. The Court ordered new briefs on whether the Court should overrule established precedent. AFAIK that had never been done before. And there was no need to do it in order to decide the case.

Justice Stevens said in his dissent:
"[T]he question was not properly brought before us… [F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."

So, as Stevens says, the five justices pre-decided the case before they had even seen the briefs. And although Stevens was too polite to say so, their only conceivable reason for forcing the issue was to open the spigots of corporate money in time for the 2010 election. Jesus Christ could have argued that case for the Government and he would have lost.

Posted by: Bloix | May 11, 2010 2:52 PM | Report abuse

Good god. What a pointless article. I know Ezra loves Obama and is trying hard, but there is just nothing interesting to say about this lady in regards to the supreme court. The fact that this kind of article exists a day after Kagan was nominated shows how unqualified a nominee she is.

Posted by: peterg73 | May 11, 2010 3:25 PM | Report abuse

*The question is irrelevant, because Kagan's job will be to reach judgements and author opinions and dissents, not influence Anthony Kennedy's position.*

Had you taken a basic civics class as a high school student, you would have known that after the Court hears a case, the justices meet together in the Justices' Conference Room to discuss the merits of the case and their various arguments about what decision should be made. Influencing each other is part of the entire process.

Posted by: constans | May 11, 2010 3:26 PM | Report abuse

I suppose I'm one of the liberals with "Scalia Envy", but what scares me most about Elena Kagan is her arguments on free speech issues during the dog fighting case which made it to the Supreme Court.

She advocated for more restrictions on speech, even distasteful speech, and believed the courts could do a case-by-case evaluation of what speech is allowed and what is not. This is not the world we live in currently, and a Supreme Court justice who believes courts should regulate speech willy-nilly scares the hell out of me. How many nutty judges are there out there? If we don't have solid legal rules clearly stating what speech is prohibited (child porn, threats), and the judiciary can make it up as it goes along, doesn't that invite a Balkanization of speech regulations?

NPR's "On The Media" did a bit about this:
http://www.onthemedia.org/transcripts/2010/04/23/03

Posted by: MadIrishFrog | May 11, 2010 3:33 PM | Report abuse

As a quasi-fan of Justice Kennedy, it concerns me that the pundits seem to think he is so easily led. It seems that pragmatism is often mistaken for weakness, and idealogy for strength.

Posted by: jduptonma | May 11, 2010 3:34 PM | Report abuse

It seems that people expect more independence from the judges on the various network television contest shows (American Idol, etc) than we do for the Supreme Court. Someone more pop culture-y than I could make some snarky comparisons.

Posted by: tomrini | May 11, 2010 3:39 PM | Report abuse

The most important thing you said is the quote from Dahlia Lithwick: "Possessing the power to persuade a very complicated 74-year-old man is not the stuff of which epic constitutional careers are made."

Consider the Kagan-confirmed court ranked by age:

Ginsberg - 77
Scalia - 74
Kennedy - 74
Breyer - 72
Thomas - 62
Alito - 60
Sotomayor - 56
Roberts - 55
Kagan - 50

Before the end of Obama's first term, he will likely replace Ginsberg.

It is conceivable that a two-term Obama would have an opportunity to replace one or both of the two oldest justices -- conservative (and really fat) Scalia and swing-vote Kennedy.

(He could also get a chance to replace Breyer, who would be 78 in the last year of an Obama second term. If it worked out that way, Obama would have replaced all four of the court's progressives with younger models and possibly added one or two new ones.)

Kagan is 24 years younger than Kennedy. I think President Obama more intends her to be the leader of a future, progressive, 5-4 majority than a nearer-term Kennedy Whisperer.

Posted by: MisterSavannah | May 11, 2010 3:58 PM | Report abuse

The problem here is that Kagan's biggest detractors were, for the most part, Diane Wood's biggest supporters — and they were all about the importance of persuading Anthony Kennedy when it was Wood who would be doing the persuading. Scott Lemieux, specifically, said one of the best arguments for Wood was “evidence from her record that she has the intellect and interpersonal skills to actually effect case outcomes.” http://tinyurl.com/38xj6cw

In a separate post, after linking to an NYT story about Wood's persuasive abilities, Lemieux concluded, “I don't know about you, but that's who I want on the Court in a major case where Kennedy is the swing vote.” http://tinyurl.com/339h844

I don't know how you can read that line as anything other than completely inconsistent with the newer suggestion that Kennedy cannot be swayed. I don't know whether Kennedy can be persuaded, or whether Kagan can do it, or whether Wood could have done it. But if persuasiveness was an attribute for Wood, there's no reason it should suddenly become an illegitimate consideration for Kagan.

Posted by: NobodySpecial3 | May 11, 2010 4:10 PM | Report abuse

@constans: "Had you taken a basic civics class as a high school student"

Sorry, constans. I'm a product of the public school system. You get what you get, and you don't pitch a fit.

I still don't think it's her job to influence Anthony Kennedy. Irrespective of the manner of debate or discussion.

To quote stevie: "And can she persuade the person who is going to replace Kennedy too? Or is that the job of the one who will replace Ginsberg?"

Posted by: Kevin_Willis | May 11, 2010 4:27 PM | Report abuse

I'll underscore: the Kennedy-centric view of the court is absurd and there is no evidence that Kennedy is open to peer pressure or lobbying. In other words, he is a good judge.

The fact that Kagan has (for whatever reason) never been a judge is troubling -- we wouldn't hire Tiger Woods as a surgeon because, while not a physician, he plays golf, which is something that many surgeons do; however, it is more troubling that the main qualification seems to be non-judicial political savvy -- the ability to use something other than law as a basis for swaying opinion of Justices.

By the way, I'm making a statement against public perception of good judicial candidates, not necessarily against the candidates. Who knows -- Kagan may withdraw and allow the President to select another nominee.

Posted by: rmgregory | May 11, 2010 5:11 PM | Report abuse

@ rmgregory :

I guess that means that Renquist was also unqualified to by a justice because he was never a judge. Historically 1/3 of SCOTUS justices were not judges. Were all of them unqualified?

Posted by: srw3 | May 11, 2010 5:16 PM | Report abuse

Instead of speculating on how much she can influence Kennedy, you can to real clear politics and hear the audio of an exchange she had with Scalia and Kennedy during the citizens united case. Both treat her as a lightweight, claiming she is not paying attention to the relevant distinction between contributions and expenditures, and therefore reaching nonsensical conclusions about what the court has or hasn't done in the past. One does not sense any respect for her from Kennedy in this exchange.

Posted by: truck1 | May 11, 2010 9:22 PM | Report abuse

Kevin, you are generally insufferable, but I confess that you do have a sense of humor. But you are still wrong. Moving the court in the desired direction is not simply a matter of appointing enough select individuals to change the court's makeup but also about putting into place someone who will drag the other justices along with him/her in the desired direction.

I will throw in my hat with those annoyed at the "Kennedy-centric" view of these proceedings and of the Court.

Also, Kagan would have been a judge were it not for the fact that Senator Hatch derailed her confirmation.

Posted by: constans | May 12, 2010 9:42 AM | Report abuse

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