After weeks of speculation, it was leaked yesterday that Elena Kagan would be President Obama’s U.S. Supreme Court nominee. It’s doubtful many were surprised by the news, but lawyers have a quite a few thoughts on what comes next for Kagan, who’s currently serving as the country’s solicitor general. I am Stephanie Francis Ward, and this is the ABA Journal Podcast.
One of the lawyers joining us today is Craig Turk, a writer and executive producer of the ABC Television series Private Practice. He’s also involved in politics and was chief counsel for John McCain’s 2000 presidential campaign.
ABA Journal: Craig, if you were a U.S. senator, what would you ask Kagan at her nomination hearing?
Turk: You know, to some extent, I have to say, it doesn’t matter much, because I think she’ll be extremely well prepared as now Justice Sotomayor was. You know and there aren’t typically “gotcha” moments in these hearings where all of sudden you’re going to hear a nominee slip out with, “you know and I think Roe and Brown were wrongly decided”. You know so I think, I think, most likely we’re going to hear her say it’s inappropriate to comment upon on most issues that might come before the court and that you know she is bound to follow the law. Um, one of the realities of Supreme Court nomination battles these days, um, is that you know for all the hype surrounding the hearing, they ultimately are not going to tell us a tremendous amount about Elena Kagan. You know, I think what they’re going to do is activate, you know, politically interested people on both sides of the aisle, and people will raise a lot of money and generate a lot of heat of off them.
You know in that instance Kagan’s in a special position. I think she can really be asked anything based on some writings she did years ago about the nomination process and hearing, which she called a “vapid and hollow charade.” I think you’ll be hearing that a lot, and I think she referred to it as “an embarrassment” that senators don’t insist on nominees revealing what kind of justice they would make or disclose their views of important legal issues. And so, I think as I said, for someone with not a long paper trail and who anecdotally hasn’t discussed these issues, she will probably be hearing her own words back to her a lot of time, and the issues I would imagine she’s going to be asked a lot about are, when she was the dean of Harvard Law School, having banned recruiters, military recruiters from HLS because of the ban on gays in the military. I think people are going to be interested in hearing her views on executive power, and the war on terror.
Stras: Yeah, I agree, with Craig that she’s very likely to get these questions. The difference is that you know if you look at the history of these nomination, confirmation hearings, you just don’t see nominees answering questions, they get to the point of following the script and essentially saying, “look I’m going to apply precedent, I’m going to give due respect to precedent,” but you don’t really hear them answering questions about you know, even their past, you know they give very sort of practiced answers to these questions. And the only way I think that’s really going to change systemically is if the senators vote down a nominee who refuses to answer the questions. Right now the safe play is always to answer as little as possible, just enough to get confirmed but not enough to create a controversy.
Chemerinsky: I don’t think it matters what she’s going to be asked. There are 59 Democrats, and she’s impeccably qualified. What David’s saying is right: There could be a point at which the senate denies confirmation when someone refuses to answer questions, but that’s not going to happen when the senate is controlled by the same political party as the president. The advantages and disadvantages that Kagan for President Obama is her lack of a paper trail. She’s not been a judge before, she doesn’t have judicial opinions to scrutinize. Sonia Sotomayor had almost 20 years of prior judicial opinions to go through—you don’t have that here. She doesn’t have that many law review articles for someone who’s been in academics that long. She has five major articles, none say particularly controversial things. Now I think that Kagan will be hit, as Craig points out, with her prior writing that said nominees should answer questions, but I think she’ll deal with that with a smile and a laugh, and say: “Well, that’s when I was in academics, now I’m a nominee and I really have to follow what other nominees have done and not tell you what I believe to specific issues.” Place I disagree with Craig is I think the military recruiting issue is very unlikely to get much traction. The realty is that virtually every major law school refused to allow military recruiters on campus. All the major law schools have policies that say in order for a recruiter to come on campus, the recruiter has to be an employer that doesn’t discriminate on race, gender and sexual orientation. The military discriminates. Harvard was like all the other law schools in this regard, and I think that answer is all that will be needed.
The bottom line is that Elena Kagan, because she doesn’t have a paper trail, makes an easy confirmation fight. On the other hand, the bottom line is that no one really knows what Elena Kagan’s going to be on the Supreme Court. President Obama can’t know. The Democrats can’t know. The Republicans can’t know because you don’t have the same kind of paper trail that recent nominees had.
Turk: And one of the interesting positions that I think Elena Kagan is in is, as I think Erwin said, I mean, she has a stellar resumé. I mean, you know, by the time she’s 50, she’s been the dean of Harvard Law School and the solicitor general which are two of sort of the iconic jobs in the field of law. She’s certainly respected by liberals and conservatives alike. And, you know, she has a tremendous amount of political cover on the right, which is typically what a Democratic president would be worried about. I mean, people like Ken Starr and Ted Olson really respect her; Charles Fried, you know, who she’d worked with at Harvard. So I think that she’s in somewhat of a special position, and as Erwin said, I think barring something cropping up, which it always does to some extent, but barring anything major cropping up in confirmation hearings I think she’s very well situated.
ABA Journal: Yeah, David. What do you think she’ll be like as a consensus-builder? I know a lot has been made about the president wanting a nominee who was good at consensus-building, much like Stevens.
Stras: Yeah. I think that she has the ability to do that. I mean if you look at her record, building consensus on the Harvard Law faculty is no easy thing. And I’m not saying that she did it perfectly, but she certainly did a good job of bringing in people from a variety of different backgrounds and viewpoints and getting them to get along with one another, which is not an easy thing at all. You know, I don’t think she’s going to come on … Stevens has more than 30 years of experience. He worked under Brennan who was a historic consensus-builder and did a very nice job at bringing justices together. And that’s reflected in the papers of justices how Brennan was able to do that. I don’t think any justice could come on the court and do that in the first three or five years. It’s really, from what I understand, a very high learning curve.
With that said, I do think that President Obama probably gets more out of Elena Kagan than necessarily going to the far left. If you go to the really far left, that particular justice is not going to have the ability really to persuade Kennedy, which is the key swing vote in almost every important constitutional case.
Chemerinsky: We don’t know where Kagan is. She may be much more moderate than Stevens. She may be more liberal than Stevens. Because we don’t have a paper trail, we don’t know. And I just want to disagree with the sentiment that it would be better to have someone who’s in the middle than more liberal because it can’t be that Republicans get to pick from fairly far on the right, people like Roberts and Alito, but Democrats can only pick from the middle. Brennan shows that somebody can be very liberal but also be a consensus-builder.
ABA Journal: OK. Now a lot of people have said, as you guys have, that Kagan would be an easy appointment for Obama with not a lot of push back from the GOP. Craig, when the president and his staff were talking to prominent members of the Republican party about Kagan’s nomination, what do you think came up in those conversations?
Turk: I think probably to some extent a sigh of relief. You know, I think that of the individuals who were known to be or at least speculated to be on Obama’s short list, Kagan, as we discussed earlier, had a lot of respect on the right, you know, during her time at Harvard Law School. She broke this kind of logjam that, you know, that existed in terms of getting professors there and, you know, even supports conservatives joining the faculty, which is something that hadn’t happened in a while. And, you know, my sense is that conservatives at Harvard appreciated her, felt welcomed. I know she did a lot to make the Federalist Society, which is obviously a conservative legal organization, feel welcome on campus, which members hadn’t always.
And so, to that extent I think that GOP senators were probably not as offended as they might have been by some of the other choices: Diane Wood, for example, who I think would have been more controversial. That I think the issues that they’ll pick on, although Erwin’s explanation of the issue I think was very articulate, I do think that that’s going to come up and I think that the Republican senators will giver her some flak on the military recruiter issue. I think her lack of judicial experience, while not necessarily problematic, has not been something we’ve seen on the court in maybe 40 years, I think, something like that. And so I think she will get questions from Republicans on, you know, does that matter and how much does it matter.
ABA Journal: And, Erwin, as someone who’s been in academics for awhile, when you look at Kagan’s history, do you get the sense that she’s been someone who’s been working for a seat on the Supreme Court for perhaps her entire legal career?
Chemerinsky: I think getting a seat on the Supreme Court is like being struck by lightning. Even look at right now, President Obama’s list that say 10 was filled with impeccably qualified people. You could say that any of them were working for a seat on the Supreme Court their entire life. But, it’s all just a matter of being at the right place at the right time. Did she have in the back of her mind that if lightning struck, she’d like to be on the Supreme Court? Sure. But that’s true of so many others. I’ll go back to what Craig and David said. This is somebody who has a golden resumé. She’s impeccably qualified. And in that sense, she’s built the credentials to be able to be considered for the Supreme Court when the opportunity presented itself.
ABA Journal: And David, what do you think?
Stras: Well, you know, I disagree with Erwin a little a bit. I do think she’s qualified, and I’m one of those people that tend to give a bit of deference to presidents. Impeccably qualified? You know, I’m not so sure given, yes, she was dean of Harvard Law School. But, a lot of scholars are measured by their scholarly output. And five or six articles in whatever, in 15 to 20 years, I don’t think necessarily make her a star scholar. With that said, I do think that she is likely qualified. I do think that there are going to be some issues, as Craig said. I do think there are going to be some issues that she’s got the answer for. But, again, unless senators are really willing to not vote her up, then I just don’t think that that’s going to be much of an issue.
And as to the question of whether she steered her whole life towards being a Supreme Court appointment, I think you could say that about a lot of nominees, but it’s more of being struck by lightning, as Erwin said. John Roberts, if he gets confirmed to the D.C. Circuit in 1999, may not be sitting on the Supreme Court today. Elena Kagan, if she gets her D.C. Circuit bid when Clinton was—actually she was the 99th person—if she gets her D.C. Circuit bid, then she may not be on the Supreme Court. So, I mean, it’s very interesting to sort of look back. But, you know, I think it’s hard to say, yes, she’s prepared to be—you know, she probably said if lightning strikes, I want to be a candidate. But I don’t think—I certainly don’t think she lived her whole life to be on the Supreme Court.
ABA Journal: Erwin, how happy are progressive Democrats with Kagan’s nomination?
Chemerinsky: I don’t think that Kagan was the first choice of progressive Democrats precisely because they don’t know how progressive she’ll be. As we’ve already said, she doesn’t have a paper trail as a judge, even as an academic that shows that she’s going to be liberal. So, I think that progressives would have rather seen a Diane Wood or a Sidney Thomas cause what they’ve done as court of appeal judges what they’ve done in academics …With Pam Karlan, we could say, “OK, this is somebody who’s liberal.”
This is the one time that President Obama could have picked a liberal. We don’t know what the Senate’s going to be after the November elections. And there is a risk in the eyes of progressives as to what Elena Kagan’s going to be on the Supreme Court. Everyone knows that she’s going to be somewhat left of center, but will she be as liberal as John Paul Stevens? I think some liberals are afraid that she’ll be more conservative than Stevens. And certainly the track record of the nominees, who don’t have a paper trail, doesn’t lead to confidence in how liberal she’ll be. Think of David Souter. He didn’t have a paper trail and he was a bitter disappointment to Republicans.
ABA Journal: David, how conservative do you think Kagan will be?
Stras: You know, this is where I agree 100 percent with Erwin. I think we have no idea. There isn’t, as I said before, she doesn’t have a paper trail in terms of her academic writing. She certainly hasn’t take positions that judge. I don’t know. Liberals have come out and talked about her executive power and the fact that she’s been very defensive of the executive power rulings of Barack Obama. I’m not sure that her position as solicitor general is indicative of how she’s going to be as a judge. In fact, I’m sure they are not.
So I think we have no idea how she’s going to be on the Supreme Court. I’m not even sure that the president may have a better idea. But, I’m not sure he has much of an idea of what she’s going to be like as a justice.
Turk: I tend to agree with both David and Erwin. I think there’s not a good way to determine how conservative or how liberal she has, she will be based on how she has been. And, unfortunately, as we’ve discussed earlier, I don’t know that the hearings are going to tell us much. I think we’re going to have to wait and see.
ABA Journal: OK. And Erwin, her hiring record at Harvard Law came up from some professors there. What did you make of that?
Chemerinsky: What I saw was Charles Fried praising her hiring with regard to ideological diversity as willing to hire under the Harvard faculty conservatives as well as the liberals. And so I think that that’s something that’s going to get mentioned a great deal. And I think having someone, assuming he does testify, like Charles Fried before the Senate Judiciary Committee, does provide her a great deal of cover with conservatives.
ABA Journal: OK.
Turk: I think uh, if, if what you were referring to was the, was the diverse issue I know that that’s, come up, it was one of those things that gets leaks. That gets leaked in anticipation of someone’s nomination. And, it was something like I think over, over the six years that she was dean, there were 29 new hires. 23 white men, five white women, and one Asian-American woman. Which I know has led some people to question her commitment to diversity. The push back from the White House was, was strong and fast. And you know, essentially they had to do it. So the fact that she said she made, a number of offers to candidates who were more diverse than the people who eventually got hired. So, I think that’s going to come up, I think it’s going to come up from the left.
Chemerinsky: I had not heard those statistics, but I’m not sure how much they’ll matter in the confirmation process. The reality is it’s the Democrats who are going to be much more concerned about it than the Republicans. They might ask about them, but they’re not going to vote against Kagan because of them. And also, Kagan has the easy defense of, I was the dean, I don’t get to make faculty appointments. I can assure you, as the dean of a law school, I don’t get to appoint people on the faculty. The faculty does. And so, of course the dean plays a leadership role. I, I just don’t see that this is going to be an issue that will get very far for anybody.
ABA Journal: OK.
Stras: Yeah, agree. This is David. I agree with Erwin. I just don’t see attacks from the left. This is not a sort of Harriet Miers situation where I think that the right attacked Harriet Miers for George W. Bush’s pick. I just don’t see attacks from the left, which is what this is. You know a number of the professors who have raised these particular concerns, are, you know, sort of self-identified liberals. Some are critical legal study scholars. I just don’t see that getting a lot of traction. The Republicans aren’t really going to want to push on that. Yeah some of the Democrats pay push but they’ll ask it in a very nice sort of, how can you explain this Ms. Kagan, or Solicitor General Kagan, how can you explain your diversity record? I just don’t see this getting a lot of traction during the hearing.
ABA Journal: OK, and Craig, as someone who makes his living in pop culture, in general, how do you think the country will react to Kagan, particularly when the Senate hearing starts?
Turk: I think picking Elena Kagan for the Supreme Court, with all due respect to Elena Kagan, is sort of like ordering chicken in a fancy restaurant. You know it’s good, it’s safe, you’re very unlikely to regret it. Is one of the specials more exciting? Maybe. But special, you know a Diane Wood or Cass Sunstein can be hit-or-miss, and I don’t think President Obama is in a hit-or-miss mood. I think her resumé is extremely strong. She’s being sold as a moderate and a consensus-builder. She’s already been confirmed recently as solicitor general. I think there will be surprises. Justice Sotomayor had, had wise Latina. You know, things always come up in these hearings that the media will, will try to fan the flames of.
Chemerinsky: The one thing that isn’t said about that that I think is important is, she’s charming in person. There’s no edge to Elena Kagan. She’s the kind of person I think will come across to the senators and to the country, is a very warm, kind person, because that’s who she is, and so I think that will really help during the confirmation process.
ABA Journal: And David, if the president gets another Supreme Court nominee, do you have any predictions on who it will be?
Stras: Well I think that’s a very interesting question. I think that one of the reasons why he picked Elena Kagan, was because you know the Democrats, are, the polls tell them that the Democrats are in trouble in the fall election. I don’t think the congressional Democrats are really braced for a big fight over a Supreme Court nominee. I don’t think judges play the Democratic base quite as much as they do to the Republican base. And so I think that, that the Senate is likely to be different. I don’t think the Republicans will win the Senate. I think it will become close, it will be closer to an even, even Senate. And, so I think it’s going to be a tougher environment for Obama to get a nominee through. So I actually see, I think Kagan was the runner-up for the Sotomayor position. From what I understand, [Merrick Garland] was the runner-up for the Kagan position. Merrick Garland was acceptable to Orrin Hatch and to a number of Republicans. I think that he’s going to be a little on the old side depending on when the appointment comes, being 57 or 58 right now, but I, I see him as a potential nominee.
Chemerinsky: I mean the one thing that’s interesting about the pattern is that Roberts went to Harvard College and Harvard Law School, Alito went to Princeton and to Yale Law School. Sotomayor went to Princeton and Yale Law School, and Kagan went to Princeton and Harvard Law School. I think some of the appeal of a Sidney Thomas is, he’s somebody from the middle of the country. Someone who didn’t grow up in one of the boroughs of New York. And I still think that the next nominee’s more likely to be a Jennifer Granholm, the governor of Michigan, or Deval Patrick, the governor of Massachusetts, or maybe a Janet Napolitano, who was governor of Arizona and is now head of the Department of Homeland Security. I think it’s going to be somebody from a different mold. But the bottom line is, is what David’s saying. Who’s the Senate at that point in time? What President Obama does is likely based on it. And keep in mind, absent unforeseen circumstances, probably Obama, even if he serves two terms, only gets one more pick. Only likely it’s Justice Ginsburg, who will be stepping down over the next seven years.
ABA Journal: Craig, do you have any predictions?
Turk: I think both of them are correct, I think it will be an indicator of how strong President Obama deals, and what shape the Democratic party is in when the pick is made. It will be interesting to see if it, if it is indeed, someone with a totally different background. I think that one potential… thing that will play into this is, you have someone like Elena Kagan, if she’s indeed confirmed, you know who doesn’t, who has never been a judge. And people who are not judges certainly do have a better shot. Or do we move back to someone from the bench? I know that there was a tremendous amount of enthusiasm on the left for Diane Wood. Some people think that Cass Sunstein is a big, bold, home run kind of pick. But then, you know if it’s a tough political situation, I’m going to agree, the Merrick Garlands of the world are much better.