Tuesday, May 11, 2010

Why pick Elena Kagan over Diane Wood?

I've seen several conservative commentators saying that Elena Kagan is about as good a nomination as we could expect from Barack Obama. That is probably true. What strikes me is her rather limited record for a Supreme Court nominee. Since she has no judicial experience, analysts have to look to her academic writings to determine her thinking. She has not written much, but Eugene Volokh has taken a look at the articles she has written and finds them quite substantive and hazards a guess that Kagan, on free speech questions, will end up about where Justice Ginsburg is. I would guess that she would end up with Ginsburg on most question. However, she is still a nominee with a very limited paper trail.

If the rumors are correct that one of the other nominees was Judge Diana Wood was one of the other top contenders, President Obama passed up the opportunity to nominate a definite liberal with quite a record that would have comforted liberals who are a bit doubtful of the Kagan nomination. Some liberals are worried, like Jane Hamsher of Firedoglake,that Kagan might be somewhat of a stealth candidate who could end up ruling ways that trouble them.
Or as liberal blogger Jane Hamsher of Firedoglake put it: “Accepting Kagan just because people like Obama is wrong. That’s appropriate for ‘American Idol,’ not the Supreme Court. Nobody knows what she stands for but him.”

The fire from the left Monday was so considerable that the White House came to Kagan’s defense, pre-emptively casting the former Harvard Law School dean as a progressive whose confirmation would not change the balance of the court.

“Elena is clearly a legal progressive,” said Ron Klain, chief of staff to Vice President Joe Biden, who helped oversee the nomination process. It’s a shift from the administration’s rollout of the nomination of Sonia Sotomayor a year ago, when the White House held endorsement events featuring members of law enforcement — and spoke little of her liberal bona fides.
So I was wondering why Obama chose Kagan over Wood who is the darling of the left and would have been one of their favored choices. I am working on the assumption that whomever the President nominated would have gotten through the Senate. I don't think that the Republicans would have attempted a filibuster. They would have needed every single Republican senator to have agreed and there are quite a few Republicans who would not go along with such a move, particularly those members who were part of the Gang of 14. There might have been a lot of sturm und drang over Wood's position on several controversial opinions particularly abortion. But she is still well respected and would have been confirmed.

So why not pick Wood over Kagan? I have a couple of guesses.

1) Perhaps Obama just flinched from the hearings. He knows that the Republican senators would have used the hearings to have explored every controversial opinion that Wood had issued. Conservatives look to nomination hearings as an opportunity for a tutorial for the American people on where they stand on constitutional questions. And Obama and his advisers figured that it would be easier to get through such a moment with more of a stealth nominee like Kagan than one with a long paper record such as Wood. Look at how they posed Sotomayor to seem a moderate appointee who totally spun her "wise Latina" remarks. It is a lot easier to strike that pose with such a lack of a record of what she really thinks.

Then you can add in the relatively positive view that conservatives have of Kagan. They seem rather absurdly grateful for her politeness to conservatives like Charles Fried when she was dean of Harvard Law. It seems rather pitiful that all it takes for conservatives to be impressed with a liberal is that she wasn't rude when they had a Federalist Society meeting at Harvard and that she hired a few conservative professors. I'm with David Bernstein on this. All that means is that she is a nice person and not a vicious partisan. Shouldn't our standards go a bit beyond being so happy that someone isn't nasty.
In short, all we know is that, like Calabresi, Kagan didn’t let her liberal ideological sympathies get in the way of doing her job. She treated all of her constituents, even those on the right, with respect, prevented ideological considerations from dominating faculty hiring policy, and generally put the interests of Harvard Law School above politics.

That’s all great, and from all indications she was a fine dean. But I’m reminded of the conservatives who attended Harvard Law with Barack Obama who lavished praise on him for actually listening to them [literally listening, not agreeing] and treating them with respect when he was editor of the Law Review. Let’s not confuse competence and basic human decency with anything more dramatic. The fact that such qualities are not always on display at places like Harvard doesn’t mean that those who display them deserve anything more than a basic acknowledgment of those qualities, nor that anything more should be read into it.
So Obama knows that Kagan will have a relatively smooth confirmation experience, as did Sotomayor, and that is what he wanted in this election year.

2. However, that explanation doesn't strike me as consistent with Obama's personality. I think he wants to be a transformational president. He knows that his nominations to the Supreme Court will be part of that legacy. If he were truly concerned about the elections, he wouldn't have pushed through his health care reform in the face of public disapproval. And besides, in a midterm election, turnout of the base is key. The liberal base is already somewhat demoralized and that will be trouble for Democrats in the fall. A Wood nomination might have been a spark to help ignite that base.

I don't think he would have ducked a fight over Judge Diana Wood if that is whom he really wanted. So why pick Kagan? So I go with the assumption that he knows quite clearly what Kagan's opinions are. He's been friends with her for almost 20 years. He most probably knows what her opinions are. He already knows that she shares his "empathy" standard of what a good judge should be. In that way, he can stand to her as Bush stood to Harriet Miers by being assured of her opinions while his ideological allies have to depend on assurances that they know where she stands.

She is also reportedly a very nice woman with a friendly personality that could help her to work with her colleagues on the Supreme Court. Perhaps that personality would help her be that person who could fill Stevens' role of trying to win over Anthony Kennedy.

And she is 10 years younger than Judge Wood. Youth is always a plus in judicial nominations.

So Obama gets what he wanted: a liberal who will agree with him on most questions before the Court. And he gets the added plus of a younger, friendly person who will skate through the confirmation hearings. And that is why she got the nod.