Dispatches from the Creation Wars

Goldstein: Stevens Gone, Ginsburg Staying

Tom Goldstein, who knows more about the Supreme Court than anyone else, makes his predictions about vacancies on the court this summer:

As we turn the corner to the second half of the Supreme Court’s Term, the inevitable conjecture begins about retirements. But this year seems extra-special: over the past few weeks, media reports and blog posts have raised the supposedly serious prospect of not one but two Justices leaving. Each piece is vague and hedged as “speculation,” and is presented as news on the thin reed that the White House is supposedly preparing for the prospect of dual confirmation hearings this summer. All of the stories are wrong.

John Paul Stevens very likely will retire. Ruth Bader Ginsburg definitely will not.


He notes that Stevens has still not hired any clerks for next year, which is a pretty strong signal, and he says there are other indications as well that he will step down at the end of this term. As for Ginsburg, he minces no words:

Justice Ginsburg was sick; she’s better, and she has consistently published a significant amount of information about her health so that the public understands that. She has sometimes worked herself to the point of complete exhaustion, so that she has been seen nodding off, which (when you get a ton of media attention) gets reported. She looks frail; that’s always been true, and it has always caused people to underestimate her. But she is at the top of her game and has no reason to retire.

Her intention to remain on the Court should not be misunderstood as not caring at all who would appoint her successor. Rather, retirement is sufficiently far over the horizon, that it really is not an issue.

To clear up any remaining ambiguity, if you believe or hear anyone else say that Justice Ginsburg may retire this summer, this is the appropriate response: Will. Not. Happen.

So that means one confirmation fight this summer. And I think Goldstein is absolutely right that Obama will go for a centrist nominee who is easy to confirm.

When Justice Stevens retires, what happens then? There will be a pretty efficient process. The White House will receive significant pressure from both the right and left, all of which it will basically ignore. Conservatives will want to use the Court as a rallying point for their base for the 2010 midterm elections and beyond. Liberals will not only rightly view this as their last, best opportunity to appoint a genuine progressive to the Court for a long time, but also will recognize the significant prospect that the Court will ironically become more conservative under a Democratic President with this change in membership insofar as Justice Stevens is the left’s leading strategist and seemingly has the best relationship with Justice Kennedy.

The President will want a highly qualified nominee, obviously. Beyond that, the calculation for the White House will be almost entirely political. Rahm Emanuel will have overriding control – if not minute-by-minute involvement – just as he did with Justice Sotomayor. And as with that previous confirmation, the calculus will be one of the political costs and benefits of the highly qualified candidates at the political moment in time.

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms. It is hard to overstate the Administration’s view of the significance of the loss of the sixtieth Democratic Senate seat. The point isn’t actually that there is a realistic chance that a Supreme Court nominee would be filibustered: there are several liberal candidates whom conservative Democrats and the Republican Senators from Maine might or might not ultimately support, but they would not filibuster. Supreme Court nominees require just fifty votes for confirmation, and with a committed effort, the Administration could get a relatively wide range of candidates through.

Instead, the effect of the vote is to reduce the Administration’s political capital and maneuvering room at a time when both are in short supply. The White House specifically and the Democratic Party more generally feel an urgent need to recapture some momentum to put their domestic agenda on track. The Administration was entirely invested – and “entirely” is not an overstatement – in a sixty-vote health care strategy, which failed the minute Scott Brown won in Massachusetts. Republicans know this, and they will do whatever is reasonably necessary to prevent Democrats from regaining their footing in the run up to the 2010 elections (as the Democrats would have done to them). The White House knows that Republicans know (etc.) and it will invest whatever political capital it has in getting centrist undecided Senators to support its domestic agenda – health care, jobs, and the like – rather than leaning on them to support a liberal Supreme Court nominee.

Look at it this way. Which of these three options is going to get President Obama re-elected: (a) 500,000 new jobs, (b) expanding health care for 10 million additional Americans, or (c) Seventh Circuit Judge Diane Wood? No one — not even the most devoted members of the American Constitution Society — believes the answer is “c”.

Let me add one more reason why hardcore liberals are going to be disappointed by his pick: Because there isn’t a shred of evidence to suggest that Obama is actually a liberal himself on constitutional issues. With the exception of his reaction to the Citizens United ruling, the positions staked by the Obama administration in the last year on constitutional issues have been nearly indistinguishable from George W. Bush.

If he was a real constitutional liberal, there’s no way in hell his administration takes the position that convicted criminals don’t have a right to access evidence for testing that could conclusively prove their innocence, nor would they be in favor of absolute prosecutorial immunity. On these issues, as in so many others, his focus has been on covering his ass and maintaining his power rather than on justice or constitutional fidelity.

So who does that mean it’s going to be? Goldstein argues, and I think he’s right, that it means Judge Diane Wood is not going to be the choice. She is absolutely brilliant — a real rock star — but, unlike Sotomayor, she has a long track record on controversial issues that will create serious opposition. Yes, the Republicans will oppose anyone Obama nominates, but Goldstein is right when he says:

But because she has at least a record of decisions on hot-button issues like abortion, there would be a genuine fight over her confirmation. Committed conservatives will oppose any realistic candidate (just as committed liberals were going to oppose anyone whom President Bush nominated), but a nominee with a paper trail will put in play the moderate Senators whom the Administration absolutely needs for the rest of its domestic agenda…

As a point of comparison, despite a long service on the bench, Justice Sotomayor had decided almost no cases on questions of race, abortion, the death penalty, guns, and gay rights. Her rulings in Ricci and on the incorporation of the Second Amendment were framed as entirely reflecting settled precedent rather than her own view of the law. Again, a nominee with a record of actual decisions on those issues is likely to generate additional ideological opposition.

So who does that leave? One obvious choice:

Nothing I have written above fails to scream – not merely suggest, but scream – Elena Kagan, who deserves the title “prohibitive front runner.” Super-smart and genuinely knowledgeable. Solicitor General. Formerly the tremendously successful Dean of Harvard Law School. Personally has the greatest respect of the President, in part from their shared ties to both Chicago and Harvard. Deep relationships in the Administration, particularly among those who served under Clinton. Well-known conservatives lined up around the block to support her in emphatic terms. Young! Female! Has an exceptional ability to sound extremely articulate and thoughtful without saying anything that could cause offense. No material track record on anything.

Curt Levey, as you try to figure out how you are going to paint Elena Kagan as an ultra-liberal, let me introduce you to Charles Fried, who served as Solicitor General during the Reagan Administration, and Jack Goldsmith, who served as Assistant Attorney General for the Office of Legal Counsel during the George W. Bush Administration. Both will testify that you are crazy, and so will lots and lots and lots of other people. This too will be the reverse of the Roberts confirmation, in which Democrats climbed over themselves to sing the Chief Justice’s praises.

I think this is spot on analysis. Kagan is a centrist who will get effusive praise from conservative bigwigs like Fried. And she’s a superstar in the legal profession. She would be the easiest to confirm. But don’t expect her to be particularly liberal on the court.