Jeffrey Rosen at TNR:
Obama has signaled that he wants a justice who can win Justice Anthony Kennedy to the liberal side of the Court in 5-4 votes. Given Kagan’s demonstrated success winning over skeptical conservatives at every stage of her career, she seems ideally suited for this role. On the Harvard Law Review, as a clerk for Justice Thurgood Marshall, and later as dean of Harvard Law School, she was liked and admired by people of widely different political perspectives. After her stint in the Clinton White House, where she was promoted from the White House counsel’s office to the Domestic Policy office because of her unique combination of legal ability and political skills, Kagan returned to Harvard Law as a professor and then dean. Her signal achievement was bringing together liberals and conservatives on faculty that was famously divided ideologically. Focusing on merits rather than ideology, she hired noted conservatives—such as Jack Goldsmith, the dissident Bush lawyer—ended public bickering, and convinced a formerly fractious faculty to vote unanimously on significant reform of the curriculum and grading system.
Essentially, any Supreme Court appointment this cycle has two tasks: 1) vote the right way; and 2) convince Anthony Kennedy to do the same. Kagan seems to have the skills to do that.
Indeed, if you think about it, those justices with the greatest scholarly credentials have not generally been thought of as effective concerning the Court’s internal politics. Holmes and Brandeis were essentially isolated dissenters. As Richard Lazarus has demonstrated, Antonin Scalia has consistently undermines his own authority within the Court by insisting on his own theories of things. It is people like Earl Warrren, William Brennan, John Marshall, and John Paul Stevens, who were plenty smart but not infatuated with their own jurisprudential theories, who got things done.
Dahlia Lithwick at Slate:
If it’s true that only Justice Kennedy is in play, and then only some of the time, the real social-engineering question for Obama becomes so specific as to be almost absurd: Which of his shortlisters might be most likely to win over a Kennedy in a close case? But if the entire calculus of this Supreme Court nomination is to be reduced to a single question, let’s at least agree that attempts to find the likeliest constitutional sherpa for the court’s last swing voter should not be that question. Who knows what type of person might sway Justice Kennedy? 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.
Scott Lemieux at Tapped:
Is there any evidence whatsoever that Kennedy is susceptible to lobbying for votes, subtle or otherwise? 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.
The most prominent case in which he switched his position after the conference vote — the school prayer case Lee v. Weisman — didn’t seem to have anything to do with personal dynamics on the Court, and by all of the accounts I’m aware of William Brennan‘s attempts to influence Kennedy were a dismal failure. I’m happy to be corrected if anyone has an example, but I don’t know of any actual evidence that brown-nosing can win Kennedy’s vote. I think part of the problem — which was also true of Sandra Day O’Connor — is that some Court observers conflate moderation with indecisiveness. Just because a justice’s votes are less predictable than some of their colleagues’ doesn’t mean that they are to be subject to manipulation.
However, like Scott I am unclear on the empirical evidence the Kennedy is some wishy-washy fellow waiting to be persuaded, or for that matter, whether Kagan is some sort of super-saleswomen when speaking to conservatives.
I’m with Scott Lemieux on this one: The idea that the role of the next Supreme Court justice is somehow to “persuade” Justice Kennedy of this or that seems ungrounded in any kind of evidence about Kennedy’s decision-making process.
I think it’s reasonable to assume that Kennedy knows his own mind perfectly well. He’s not pulling these decisions out of the ether any more than his colleagues. The Republican Party of the 1980s was simply a much more ideologically diverse coalition than the Republican Party of 2010. This was especially true on certain kinds of social and cultural issues. Ronald Reagan was a popular political leader in New Jersey, not just Alabama. In the modern day, Kennedy’s particular mix of viewpoints has become rare, but that’s just a sign of how much things can change over the course of a 22-year (and counting!) spell on the Supreme Court, not a sign that he’s somehow confused or particular easy to persuade.
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.