What Supreme Court Nominee Elena Kagan Should Expect

May 10, 2010

Benjamin Wittes participated in a Washington Post discussion on President Obama nominating Solicitor General Elena Kagan for the Supreme Court.

Elena Kagan, like the three sitting members of the Supreme Court whose nominations immediately preceded her, warrants confirmation in a matter of hours. Like John Roberts, Samuel Alito and Sonia Sotomayor, she is obviously smart, capable and well-qualified, and her views obviously fall within the diverse streams of thought that make up the bread and butter of the American approach to the rule of law. The Senate and the public know everything they need to know to vote on her confirmation today.

Yet needless to say, like her three predecessors did, Kagan has a different future awaiting her. She will face a hot summer full of rhetorical blunderbuss about gays in the military and military recruiters on campus. She will face the inevitably silly and fruitless efforts to plumb the depths of her “judicial philosophy” — which will turn out to be a crude effort to find out how she would rule on specific hot-button issues. And at the end of the day, the Senate will confirm her by more or less the same margin as it would confirm her if it voted today. We will have learned nothing about what sort of justice she will be — just a lot about how she handles a confirmation process that bears not a whit on her ultimate job performance.

Like Roberts, and unlike Alito and Sotomayor, Kagan brings a certain amount of stealth to the confirmation process. She’s written relatively little, and few people know her specific views on a great many issues. By the end of this process, we will pretend to know a great deal more. But the pretense will be thin. She will still be a blank slate — and they will still be voting on a combination of instinct and partisanship.