Up Front

Web Chat: Supreme Court Nominee Elena Kagan

Sarah A. Binder

On May 12, Sarah Binder took your questions on President Obama’s choice of Elena Kagan for the U.S. Supreme Court and the complexity of the confirmation process in a live web chat. David Mark, senior editor at POLITICO, moderated the discussion.

The transcript of this chat follows.

12:30 David Mark: Hello everybody – thanks for joining us to discuss the upcoming confirmation hearings of Elena Kagan to the Supreme Court. Let’s get started.

12:30 [Comment From Eric: ] Do you think Kagan will be confirmed? If so, how long do you think it will take?

12:31 Sarah Binder: The safe bet is that Kagan will be confirmed. Unified, Democratic party control of the White House and the Senate (with 59 Dem votes) easily predicts confirmation.

12:31 [Comment From Fred: ] Do you foresee any major stumbling points for Kagan in the confirmation process?

12:32 Sarah Binder: I think the confirmation process will largely resemble contests from the recent past. I don’t see any major stumbling points, though Republican senators will try hard in the Judiciary Committee hearings to force her to be forthcoming about her views and judicial philosophy.

12:33 [Comment From Mark: ] Can you explain some of the controversy surrounding Kagan’s nomination? It seems like there’s a lot of debate about whether or not she is qualified, never having served as a judge before.

12:34 Sarah Binder: Good question. My sense is that Republican senators are largely looking for a “hook” on which to hang potential opposition to her nomination. Of course, even the current chief justice, John Roberts, had but two years prior experience on an appellate court bench.

12:35 [Comment From Jennie: ] Will Kagan bring a new perspective to the court?

12:38 Sarah Binder: I’m assuming that Kagan would bring a center-left perspective to the bench. That side of the bench is aging, but certainly intellectually energetic. She’s said to be whipper-smart, but so is the company she’s joining.

12:38 David Mark: Can senators who backed Kagan for her current post of Solicitor General be expected to support her Supreme Court nomination?

12:39 Sarah Binder: That will be an interesting little bit of Kabuki dance, I suspect. Some GOP senators noted that the qualifications for SG are different than for a lifetime appointment to the highest court. That is certainly a plausible defense of changing one’s vote to oppose her confirmation, but it’s hard one to sell the public.

12:40 [Comment From Maria: ] What do you think about Obama’s two nominees both being women? Interesting!

12:40 Sarah Binder: Like many others, I wasn’t surprised to see the president nominate a woman. Given the current gender imbalance on the court, it seems a reasonable goal to bring that ratio closer to par.

12:41 [Comment From Yan: ] Typically, what’s the focus of the confirmation process? What do you think Elena will be asked?

12:43 Sarah Binder: The focus of the confirmation process– and here, I’m thinking primarily about the hearings before the Senate Judiciary panel– tends to differ across the two parties. Democrats, defending Kagan’s selection, will laud her experience and intelligence and qualifications. If they push her on particular issues, it’s likely to be ones relative to Congress’s power. Republicans are more likely to focus on raising doubts about her qualifications and on boxing Kagan into specifying her views across a number of contentious issues– abortion, among them.

12:43 [Comment From Wesley: ] what exactly is Solicitor General and what does the person in that position do?

12:45 Sarah Binder: Think of the “SG” as the “Tenth Justice.” S/he represents the government’s position in the case, and often times justices look to the SG’s position as a signal on the key dimensions of a case.

12:45 [Comment From Bill in Va.: ] Earl Warren and William Rehnquist also never served as judges before they became justices. Do you think it’s worth Democrats’ time to point this out to the public and Republicans?

12:46 Sarah Binder: I have no doubt that Democrats will be pointing to these examples– certainly Rehnquist– as a central defense of why potential justices need not have served previously on the bench.

12:46 [Comment From Tim: ] Given the dearth of material on Kagan, should her confirmation hearing be held to the standard she outlined in her 1995 University of Chicago Law Review article in which she argues the Senate should embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments”?

12:48 Sarah Binder: Great question. Yes, she should certainly be held to that standard. But there’s little chance that Kagan will be more forthcoming about her judicial views and/or philosophies than previous nominees before the SJC have been. There’s certainly some validity to the view that nominees can’t prejudge cases by stating opinions on how they might rule. But giving the Senate a sense of how they view the Constitution and constitutional interpretation certainly seems a reasonable standard. This is a lifetime appointment, and this is the Senate’s only opportunity to exercise accountability, as it were.

12:49 [Comment From Josh: ] Earl Warren!! Egads! Don’t mention that to Republicans!!

12:49 Sarah Binder: Yes, Rehnquist is more likely to resonate as an example, for sure.

12:49 [Comment From Terrence: ] Have there been other SCOTUS nominees or justices whose backgrounds were so heavily slanted toward academia?

12:51 Sarah Binder: My sense is that Kagan’s academic background is actually somewhat light compared to other previous nominees. Much of her experience was molded working in the executive branch over two administrations.

12:51 David Mark: Is there any chance Kagan’s nomination could be sunk from the left? Liberal bloggers, activists and others are concerned she is a blank slate and not necessarily reliable on the issues they care about. Could we see a repeat of the Harriett Miers confirmation, which was beaten back by conservative Republicans?

12:54 Sarah Binder: That is an interesting possibility, but I suspect it is unlikely to happen. Surely liberal activists will have these debates, but I can’t see such views having much weight with Democratic senators. Also, my sense is that Harriet Miers’ nomination was sunk by conservative legal elites because she was not from among that wide circle of conservative elites. Kagan is certainly embraced (Harvard, Princeton, SG) as coming from that circle on the Democratic side.

12:54 [Comment From Sally: ] Much is being made of her record of hiring at Harvard, which seems strange to me. Aren’t there better ways to tell if she’ll be a fair and impartial judge?

12:56 Sarah Binder: I have to admit that– like you– I’m not terribly impressed by the argument that her ability to lead and manage the Harvard Law School is a signal of her ability to build court coalitions. Lots of funding for hires at Harvard empowered Kagan to hire widely across the ideological spectrum. ( I doubt that’s in the cards at cash-strapped Harvard today!) Speaking as a political science professor, I have no doubt that the free lunches for faculty went a long way as well!

12:56 [Comment From Tom: ] What are the odds that a Senator will try to filibuster this nomination?

12:59 Sarah Binder: There could well be a concerted pocket of opposition to Kagan from Republican ranks. But a filibuster won’t succeed, given that Democrats’ sticking together would only need to secure 1 GOP vote (Collins? Snowe?) to confirm Kagan.

Also, it’s worthwhile noting that GOP senators are on record from 2005 opposing judicial filibusters. But senators usually practice a good deal of situational ethics when it comes to filibusters– where you stand depends on where you sit. If GOP senators thought it was politically wise to filibuster, I suppose they might push for a cloture vote. But, all that said, I don’t see that arising this time around.

12:59 [Comment From Tom: ] And as a follow up: why have confirmation hearings become so partisan? Is is simply that activists on both sides like the opportunity to raise money and inflame passions on both sides? Or something else?

1:02 Sarah Binder: Great question. Judicial nominations have been polarized along partisan lines for over a decade, in fact reaching back at least to the early 1980s. I tend to think that interest groups reflect–rather than drive– party divisions over nominees. I’d attribute the partisanship over nominees since the 1980s to two key issues: 1) the rise in polarization more generally between the parties and 2) the centrality of the court since that time on pivotal issues (abortion, civil rights, etc). As the courts become more important on social and other issues and as the parties have polarized over those issues, no surprise that such partisanship spills over to Court nominations. And we see that conflict at all levels of the federal courts now, even the trial courts.

1:02 [Comment From Nicole: ] Is it unusual for a president to have the opportunity to nominate two justices in such a short period of time?

1:04 [Comment From Lisa: ] I read that only 7 Republicans backed her when she was confirmed as SG in 2009. What’s changed since then that makes more Republican support likely?

1:05 Sarah Binder: Unusual, not really. President Bush had two vacancies in a short period– nominating Roberts and Alito. Keep in mind that the court under Rehnquist served together for a long time. As the justices age, it’s probably no coincidence that vacancies come in quick succession.

1:06 Sarah Binder: Not much has changed since Kagan’s confirmation vote as SG last year. So, no, I don’t really expect the GOP to rally around Kagan. My hunch is that the vote should look quite a bit like Sotomayor’s.

1:07 [Comment From Nicole: ] Are there any other expected retirements of justices in the near future?

1:07 Sarah Binder: I would not be surprised to see Justice Ginsberg retire while President Obama is in office.

1:08 [Comment From Leo: ] Considering the greater party polarization you mentioned, is there much political pressure to select younger nominees?

1:09 Sarah Binder: I think the pressure to select younger nominees is independent of the polarization we see. Presidents want to make a lasting impact on the court, and the most direct route in terms of selecting a nominee is to find someone who will be there a good long time!

1:09 [Comment From Greg Greg: ] Do Republicans not support her just because she is Obama’s choice? From what I read, her views seem to fall to the right of Justice Stevens’.

1:12 Sarah Binder: Subject to the caveat that we don’t really know which GOP will support or oppose Kagan, there is some truth to the observation that party lines develop even in the absence of ideology. Why do the parties line up on opposite sides over campaign finance? Over ethics in government? Over many other non-ideological issues? There’s a good amount of “team play” in the Senate. And as you suggest, this often leads the opposition party to oppose the president’s position because it is the other party’s position. But again, we don’t actually know how Republicans will vote on Kagan’s confirmation.

1:13 Sarah Binder: I would add that we don’t *really* know where Kagan’s views fall on a wide number of issues. I think we can assume she will be a reliable vote with the liberal side of the bench on most issues, but not every issue before the court divides left-right.

1:14 [Comment From Tim: ] In light of procedural decorum, how would the Senate Judiciary Committee best go about ascertaining Kagan’s views without her resorting to Roberts’ umpire argument?

1:15 Sarah Binder: Well, that’s the problem. Nominees have a long history of avoiding revealing their views. And senators have limited tools to extract their views. I do think Roberts’ “I’m just an umpire calling balls and strikes” has been tarnished a bit in cases (like Citizens United) that reversed precedent. But I have no doubt Kagan and subsequent nominees will come up with their own (evasive) formulations!

1:15 David Mark: One aspect of the Kagan nomination that has received less attention is that she would be the third female justice on the court now (and the fourth in history.) Does this give President Obama cover to name another male if, say, Justice Ginsburg were depart while he is in office?

1:17 Sarah Binder: That scenario is certainly plausible. Appointing two women in a row takes some of the pressure off Obama to replace Justice Ginsberg with a woman. That would “free him” in a sense to look for other avenues of diversifying the bench.

1:17 [Comment From Joe: ] What justice had the toughest confirmation hearings?

1:18 Sarah Binder: Of course he didn’t make it to “justice,” but Judge Robert Bork had a pretty tough going before the Senate. As did Clarence Thomas, who, of course, was ultimately confirmed.

1:18 [Comment From Jim: ] Where are you on all this nonsense about Kagan’s sexual orientation? Why are people making such a big deal about this? It’s quite a distraction from the real issues at hand.

1:19 Sarah Binder: Kagan’s sexual identity does not strike me as relevant to the debate over whether she should be confirmed. I would just say that it’s difficult to move an issue off of the blogosphere.

1:20 [Comment From James: ] What about the fact that Kagan, if confirmed, would make 9/9 justices with law degrees from either Harvard or Yale. Is this bad, in your view? Do you think the President will try to look outside those 2 alumni associations in filling the next vacancy, if any?

1:22 Sarah Binder: I grew up on New Haven pizza, so I retain a certain fondness for the place. But, diversity on all dimensions of qualifications and attributes strikes me as important. That said, this doesn’t seem disqualifying to me, and from what’s been reported about the selection process, this doesn’t seem to be troubling to Obama. Supreme Court justices are elites, regardless of which law school they went to.

1:22 [Comment From Greg: ] It seems unlikely that Republicans will cause any real trouble for Kagan during the hearings, though. Right?

1:23 Sarah Binder: I suspect that if there was a corollary to the “wise Latina” comment from Sotomayor that it would have been unearthed already. So no, I don’t really expect much trouble per se for Kagan during her hearings.

1:23 [Comment From Sally: ] Overall do you have a sense of how long the hearings will last and when she will be confirmed?

1:25 Sarah Binder: The trend for advice and consent over the past 2-3 decades is to take longer and longer. This applies to all levels of the federal bench, but particularly the appellate courts and the Supreme Court. My hunch is that the confirmation vote will be held before the Senate breaks for its August recess. Republicans will want time to scour her record, and that will push off the hearings for several weeks.

1:26 David Mark: Thanks for joining us. Enjoy the afternoon.

1:26 Sarah Binder: Thanks for having me!