Up Front

Web Chat: Elena Kagan and the Supreme Court

Russell Wheeler

Although Elena Kagan’s nomination for Supreme Court Justice has been controversial, especially among Republicans, the upcoming floor debate is likely to result in her confirmation. If confirmed, Kagan would be the second seat filled by President Obama in two years.

On Wednesday, August 4, Russell Wheeler answered your questions in a live web chat about Elena Kagan’s confirmation and the complicated nature of federal judicial nominations, moderated by POLITICO’s Seung Min Kim.

12:31  Seung Min Kim: Good afternoon everyone. We’re here with the Brookings Institution’s Russell Wheeler to chat about the confirmation process for U.S. Supreme Court nominee Elena Kagan and the complicated nature of federal judicial nominations.
 
12:34  [Comment From jennie: ]  How does the Kagan nomination/confirmation process compare to others for the Supreme Court in recent years?
 
12:35  Russell Wheeler: From nomination to confirmation (tomorrow) will be 87 days, slightly more than Sotomayor but less than Roberts. Looks like she’ll have 63-65 affirmative votes.
 
12:35  [Comment From Erin: ]  Will Kagan’s not having been a judge limit her ability to serve well on the Court?  

12:36  Russell Wheeler: I don’t think so, although it’s emerged as a main line of attack. She’s been the “10th justice” as solicitor general and knows constitutional and statutory law, and she clerked on the Court.  

12:36  [Comment From Mark Lewis: ] What effect, if any, will it have on the Court that women will constitute a third of the Court’s membership?  

12:37  Russell Wheeler: I really can’t say, although with women as one third of its membership, the Court will look more like many of the state supreme courts and courts in other common law countries.  

12:38  [Comment From Lindsay: ]  What are some of the big cases that Justice Kagan will face on the Court’s docket for the next term?  

12:41  Russell Wheeler: She’s said she won’t participate in 11 of the cases because she signed a brief in them as solicitor general, but the cases in which she evidently will participate include a challenge to an Arizona law regulating employment by immigrants (not the law currently in litigation), a case challenging a California law limiting the sale of violent video games to monitors, and the case involving the people from the church in Kansas who demonstrate at the funerals of dead soldiers, with the claim that this is God’s punishment for the country’s tolerating homosexuality. They make a free speech claim. Ugly people are, strangely enough, often those who lead to important free speech claims.  

12:41  [Comment From Mark, Greenbelt: ] How is Obama doing on his other nominees? What’s the backlog, and how does that compare to other administrations?  

12:43  Russell Wheeler: He’s been slower to nominate circuit and district judges, and has fewer in the Senate than George W. Bush had at this point in his administration. I suspect that at the end of this Congress, his confirmation rate for circuit judges will be about the same as Bush’s–around 50%. What’s interesting, and disturbing, is that his district nominees are running into roadblocks that Bush’s district nominees did not face. The confirmation controversy virus is seeping down to the trial level.  

12:43  [Comment From Jennifer Susskind: ]  The judicial confirmation process has become so polarized. Nominees wait for months and months, and their lives are disrupted. Is there any way to make the process run more quickly and fairly, no matter which party is in power?
 
12:44  Russell Wheeler: That’s the 64 thousand dollar question, and I don’t have an answer. The process you describe is due in large measure, I think, to forces outside the Senate–political polarization, the eagerness of interest groups, left and right, to exploit the process. But the Senate’s unanimous consent rules make those forces worse.  

12:44  [Comment From Linda: ]  If Kagan’s confirmation seems assured, especially after her hearings, why are Republicans still fighting it?  

12:46  Russell Wheeler: Partly to warn Obama that, if he gets another vacancy, and the Republicans have more members in the next Senate, he’ll have a fight on his hand. And part of it is motivated by the upcoming elections. Senator Sessions has all but warned senators that a vote for Kagan will have repercussions if they’re up for reelection.  

12:46  [Comment From Claudio: ]  Will Kagan (if confirmed) do much to change the liberal/conservative balance of the current Supreme Court? Doesn’t it seem as though this is overstated by the media/wonks?  

12:47  Russell Wheeler: The conventional wisdom is that a moderate liberal replacing another moderate liberal won’t have much effect, but keep in mind that she’ll be deciding cases years from now on matters few of us can predict. Who would think that Stevens would be deciding cases involving enemy combatants?  

12:47  [Comment From Doug Lattimore: ]  Have you seen any good proposals for reforming the process?  

12:48  Russell Wheeler: If the Senate could bring itself to get rid of the rule that requires unanimous consent to bring a nomination to a vote–forcing the leadership to put off votes or tie up the Senate–that would help. Other structural changes talked about have been senators’ use of bipartisan committees to vet potential candidates in the hopes they might have smoother sailing, but so far, the 21 committees now functioning don’t seem to have made much difference.  

12:49  [Comment From Liz Purdy: ]  Who do you think will be the next justice to leave the court, for whatever reason, and will it come during the Obama administration?  

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12:50  Russell Wheeler: One would suspect Justice Ginsburg, who’s now the oldest member of the court at 77, but she told the AP the other day that she’s still determined to serve to the same age as Louis Brandeis, who was 82 when he retired. Four of the justices are over 70, so it’s not as if other factors couldn’t be at work. I suspect Obama, if he wins reelection, will have at least one more vacancy to fill.  

12:50  [Comment From Andrea Murta: ]  What do you think will be the main point of criticism from Republicans in questioning her nomination?  

12:51  Russell Wheeler: They’ve emerged in the “debate” so far–isn’t a judge, has thin experience in the practice of law, was disingenuous about the military recruitment policy at Harvard.  

12:51  [Comment From Paul J.: ]  I’ve read of some serious concerns regarding the current Court’s ability to tackle complex issues… topics such as genetics, or even dealing with technology. Do you think that has much, if any effect on new appointments?  

12:52  Russell Wheeler: I haven’t heard that, but that’s not to say it hasn’t been talked about. I don’t [think] that it would influence much a president’s choice of a nominee, however, but I may be missing something.  

12:52  [Comment From Hugo: ]  What did you think of Kagan’s response to the questions she got during her hearings on the separation of church and state?  

12:53  Russell Wheeler: She wasn’t too responsive to many questions of substance, and that’s understandable. I didn’t think church-state relations got much visibility during the hearings.  

12:53  [Comment From Richard Goess: ]  Is the role of the Supreme Court overstated? How does its influence compare with the role of the lower federal courts? Where do most cases get decided?  

12:55  Russell Wheeler: It decides (these days) about 80 cases a year, while the U.S. courts of appeals dispose of about 30,000 merits terminations a year, not to mention the state supreme courts. And its 80 cases are not all blockbusters, like the few we hear about. But your point is well taken. The courts of appeals–and the district courts–have a more pervasive influence on many people’s lives, and of course, the federal courts are just a fraction of the size of the state courts, where the great majority of judicial disputes get resolved.  

12:55  [Comment From Ned: ]  The RNC has been saying that Kagan is not in line with “mainstream” America, is there anything to actually indicate this is true? 

12:56  Russell Wheeler: If they mean, she’s not from the Midwest, for example, I guess that’s true. But I’m not sure know what the mainstream is and how it should affect selecting a Supreme Court justice. For what it’s worth, recent polls suggest that over half the population supports her nomination.  

12:56  [Comment From Bob, Las Vegas: ]  Do you think Kagan’s experiences at Harvard with “Don’t Ask, Don’t Tell” will influence the court’s future decisions on gays in the military?  

12:57  Russell Wheeler: Not at all. I think she’s sympathetic to gay rights, but that’s different than looking for clues in the controversy over the Solomon amendment. By the way, the district court in California is due to release its decision today on the constitutionality of Proposition 8. That will probably get referenced in the floor debate.  

12:57  [Comment From Aaron: ]  If President Obama gets another Supreme Court vacancy, who are the judges/legal scholars waiting in the wings?  

12:59  Russell Wheeler: Mainly those individuals who’ve been talked about, especially those regarded as even more middle of the road than Kagan–Judge Garland on the DC court of appeals for example, because all indications are that the Senate will be more closely divided next year. I wouldn’t look for a nominee regarded as a forceful advocate for liberal jurisprudence.  

12:59  [Comment From Mike L., Washington: ]  What are the real-world consequences of delays in getting judges onto the lower courts? What does it mean for Joe Sixpack?  

1:00  Russell Wheeler: I don’t know about Joe Sixpack and how often he litigates in federal court. But, e.g., the district court in Delaware is down to 2 of 4 judges. That court has always heard a fair number of commercial cases, including patent cases, and the vacancies are having an effect. Both parties can be blamed for that situation, since one of the vacancies occured in 2006.  

1:00  [Comment From Don D.: ]  What do you make of that fact that once Kagan assumes her seat, each member of the U.S. Supreme Court will have attended law school at either Harvard or Yale? Good? Bad? Irrelevant?  

1:01  Russell Wheeler: Mostly irrelevant. It’s not as if they walked out of Harvard or Yale and right onto the court.  

1:01  [Comment From Firmadge: ]  Why is Obama having such a difficult time getting his lower court nominations through the confirmation process? Is the legal system becoming taxed with key positions left unfilled?  

1:02  Russell Wheeler: Different takes on that question. Some say he hasn’t made it a priority, so the Republicans can claim they’re not to blame for the lower number of confirmations. Others say he’s taken care to consult with home-state, including opposition senators, and that’s slowed the nomination process (and it hasn’t done him a lot of good). Basically, nominees are getting hearings quickly, and then they wait until the Republicans will allow a vote. 

1:03  [Comment From Genevieve Randall: ]  What do you think of Roberts as chief justice? Are conservatives getting what they wanted? What’s his style?  

1:04  Russell Wheeler: I think he has turned out to be pretty much what one would have expected, but it’s easy to paint with too broad a brush. Tom Goldstein of SCOTUS blog posted a very thoughtful essay on June 30 showing that the court’s perceived move the right is real, but much more nuanced than one might think.  

1:04  [Comment From Jaquie: ]  Do you think that there’s much of a chance the executive branch will take a more critical tone towards the Supreme Court? Considering the heavy polarization… I’m reminded of Obama’s State of the Union Address and Alito’s visible response.  

1:06  Russell Wheeler: It’s certainly true that just as Republicans are trying to use Kagan to score points with the electorate, the Democrats are using these hearings to criticize the (Republican-dominated) Court, pointing to decisions like the campaign finance case. I think the executive branch generally, the last one and this one, respect the institutional integrity of the judicial system. In frankness, I can’t say the same for many [Congressional] Republicans who went after the judiciary when they were in the majority.  

1:06  [Comment From Kathleen: ] There seems to have been a lot of discussion about how Kagan, prior to being nominated, said nominees should be more open during confirmation hearings, but now has said very little during her own confirmation process. Do you think it would be a good idea for there to be more debate on specific issues, and especially a potential justice’s opinion, during Senate proceedings? And, if so, how do we get that to happen?  

1:07  Russell Wheeler: She’s certainly had to eat those words, and I think she should. The hearings have become a spectacle that accomplishes little positive. I don’t think it’s the role of the Senate to try to get nominees to say how they would rule on cases.  

1:07  [Comment From Meredith P., Warren, VA: ]  Will her religion make a difference?  I heard a radio story about how the religious mix of justices on the bench doesn’t reflect the mix of the American public.  

1:09  Russell Wheeler: There will be no Protestants on the Court–3 Jews and 6 Roman Catholics. It’s an interesting development (from the days when the court had a “Jewish seat” and “Catholic seat” but I think, like the law school question, that the direct impact of religion on decisions will be very minimal. The whole question of what motivates decisions, of course, is very complex, and religion probably plays an indirect role.  

1:09  [Comment From Don: ]  Do you think Sen. Sessions’ failed judicial nomination has influenced his work as ranking member on the Judiciary Committee?  

1:10  Russell Wheeler: Don’t really know. He has said it has made him more sympathetic to nominees and to want to treat them fairly. I don’t think for a minute that his criticism of Obama’s nominees is because his nomination got defeated. I don’t agree with his criticisms, but I don’t question his motives.  

1:10  [Comment From Xander: ]  Back when the Founding Fathers conceived of the Supreme Court, people didn’t live as long as they do now. Do you think justices should have really long terms – like 20 years – instead of lifetime terms? They need to be insulated from the changing tides of public opinion, but for 40, 50 years on the bench? 

1:12  Russell Wheeler: That’s an argument that has merit, but so far, it has been confined mainly to the academy. The evidence on whether they currently serve longer is not conclusive–a recent Judicature article took issue with the claim. The bottom line is that not much fundamental change occurs in the judiciary without a crisis. If 3 or 4 justices stayed on the bench when they were obviously incompetent, that could lead to serious discussion of term limits.  

1:12  [Comment From Ricardo: ]  You mentioned some cases the Supreme Court might face in the near future… do you expect any major challenges to the recent decision on corporate campaign contributions?  

1:13  Russell Wheeler: I don’t think the court as currently constituted is going to back away from its view that limits on campaign financing are First Amendment violations. I suspect those critical of the decision will hope it doesn’t take more cases.  

1:13  [Comment From Sally: ]  Why didn’t any of the Republican arguments against Kagan stick?  

1:14  Russell Wheeler: If by “stick” you mean lead to her defeat, I think it’s because the arguments are not terribly persuasive. But she’ll certainly join the list of recent justices who are confirmed by closely divided votes–certainly compared to votes in the 1990s and before (with some exceptions).  

1:14  [Comment From Jeff Osterlander: ]  Why are critics saying she needs more experience as a judge? There have been some legendary justices who never served a day on the bench before they got to the Supreme Court, haven’t there?  

1:15  Russell Wheeler: Sure–Earl Warren, Felix Frankfurter, Lewis Powell, William Rehnquist. The opponents, in fact, haven’t pushed the “no judicial experience” argument, as much as they’ve conceded the point but claimed she has very little experience in the practice of law, unlike many justices who came to the Court without judicial experience. 

1:15  [Comment From Chico: ]  Following up on your earlier comment about Kagan being a moderate liberal replacing a moderate liberal… much has been discussed about Kagan’s personality and approach to conversations, and her tendency to play a mediation role. Do you think this would change the character of the Court in any meaningful or visible ways?  

1:16  Russell Wheeler: Hard to say. She’s certainly known as inclusive, and willing to take seriously arguments with which she disagrees. Whether, as some think, she’ll win over Justice Kennedy, remains to be seen, but the members of the Court are fairly strong personalities. At least, any effect’s not going to show up right away.  

1:17  [Comment From Josh: ]  Has Kagan said whether or not she will recuse herself if the question of the constitutionality of the health care bill gets to the Supreme Court? And if she is not recusing, what, if any, impact do you think she will have on that decision?  

1:18  Russell Wheeler: She was asked to commit to recuse, and she declined, saying that she did not discuss the legislation within the administration. I suspect, given her stated views of the commerce clause, that she would be very unlikely to uphold that challenge to the legislation (i.e. that mandating buying insurance is beyond the federal government’s authority).

In response to unpublished [Comment from Emily Quanbeck: ]  Have you perceived any real changes to the executive’s strategy with nominations since the last high profile appointment failure, which (I believe) would be Harriet Miers? 
 
1:19  Russell Wheeler: Not really. Bush was criticized for pulling poor Harriet Miers out of a hat and not consulting even with his base in Congress. But the consultation that has gone on has been as much for show as anything. That may be a little strong. The consultation [on] lower court nominees seems to have been more purposeful, and perhaps things would be worse without it.  

1:20  [Comment From Sal: ]  Do you think that Republicans who vote to confirm Kagan will face political consequences down the road? 

1:21  Russell Wheeler: Not in the same sense that opponents of Sotomayor worried that a “no” vote would hurt them with Latino constituents. I don’t see too much downside for a “no” vote, and in some places, it might help. Last I checked, Senator Lincoln hadn’t said how she’ll vote.  [Update: C-SPAN has identified Lincoln as a “yes” vote.]  

1:21  [Comment From Joan: ]  Can provide a bit of background on the controversy surrounding Kagan’s 1996 Clinton White House memo aimed at altering a key medical group’s opinion of whether partial birth abortion is medically necessary? Why was she so reluctant to admit that she did in fact write the memo?

1:21  Russell Wheeler: I confess that that is one part of this story that I have not followed closely. The Republicans haven’t [correction: have] certainly made much of it.  

1:21  [Comment From Amy: ]  You mentioned that if Obama is reelected, he will likely have the opportunity to fill one more seat on the Supreme Court. Do you think this potential appointment will change the dynamic of the Court to a significantly greater extent than the nominations of Sotomayor or Kagan have?  

1:23  Russell Wheeler: Justice Stevens [correction: Scalia] is 74. By 2014, he’ll be 78, and who knows, might step down or encounter health problems. If Obama has a chance to nominate his successor, it will be a real donnybrook, because that would influence the Court’s direction. So too with Kennedy, who is 74 also. 

1:23  [Comment From Jeff Osterlander: ]  I kind of take an opposite view from Kathleen above. I think the “advise and consent” role of the Senate has been taken too far, and that the president should have the right to put qualified nominees in place. What do you think the balance has been and should be?  

1:24  Russell Wheeler: I tend to agree more or less with Senator Graham, who said that elections have consequences, and if the nominee is professionally qualified and passes the ethics tests, etc., the Senate should defer to the president, which has been more or less the practice up until recently. But some elections have more consequences than others. An election won by a narrow margin is not the same as a blowout.  

1:25  [Comment From Sally: ]  Looking at other federal judicial appointments — not the Supreme Court — how many vacancies are there? Is Obama’s record of confirmations worse than President Bush’s?  

1:27  Russell Wheeler: There are now 20 circuit vacancies and 82 district vacancies. Obama, for nominations made more than 4 months ago, has a 50% confirmation rate for circuit judges, versus 43% for Bush. The rate for Obama district nominees is 71%, versus 85% for Bush. That’s the real story. We’ve come to accept confrontation over the Court and the courts of appeals, but now it’s seeping down to the district court. There’s no way Obama will end this Congress with 98% of his pre-July district nominees confirmed, which is what Bush got.  

1:27  [Comment From Sally: ]  And as a follow up – if partisanship and the secret “holds” in Congress is the problem, what can a concerned citizen do about it?  
 
1:27  Russell Wheeler:  Not much, other than hold Senate candidates’ feet to fire about relaxing the unanimous consent rule–not very likely.  

1:28  [Comment From Kaylee Brown: ]  Did all of the strife over Senate nominations start with Bork, or were their controversies further back in history? Does this kind of ebb and flow?  

1:29  Russell Wheeler: That’s a good question. A lot of people date it from the Bork nomination (the last hearings when the nominee did answer questions frankly), but my colleague Ben Wittes traces the problems to the days following Brown v. Board of Education, and Southern democrats trying to pin down Eisenhower nominees about race-related litigation. 
 
1:29  [Comment From Rafael: ]  I was curious… does the modern Supreme Court handle a larger backlog of cases than it did, say, 20 years ago? 

1:30  Russell Wheeler: The Court’s caseload has been steadily rising, but the number of full-blown decisions it makes has been declining–half of what it was 30 years ago. Congress has given the Court almost complete discretion about how many cases it will decide.  

1:31  Russell Wheeler: That will have to do it, because we’re out of time. Sorry we couldn’t get to more questions. Thanks very much for participating. I enjoyed it.