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The Ten Biggest Issues Elena Kagan Will Face

From 'don't ask, don't tell' to her beliefs on executive power.

Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted.

Here is how I think the nomination process is likely to play out. I divide it into process and substance.

First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28. Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee. June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11. So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees.

Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail--note the contrast with the nearly two decades of decisions by Sonia Sotomayor--means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same committee as Solicitor General.

Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.

Also important will be the speed with which the administration produces documents--not only the nominee’s questionnaire to the Senate but also the documents it intends to produce from Kagan’s time in the Clinton administration. A genuine fight over materials could lead to a delay.

Two recent nominations provide guideposts. Justice Breyer was nominated on May 13, 1994, and his hearing commenced on July 12. Justice Sotomayor was nominated on May 26, 2009, and her hearing commenced on July 13. Thus, hearings on both of those nominations were held after the July 4 recess. But again, Kagan has a significantly less voluminous record than either Breyer or Sotomayor.

All in all, I expect that the hearings will be held in the week of June 28. That schedule creates some awkwardness: It is likely the same week that the Court will finish its term. The Court ends the term when it completes its decisions; there is no fixed date. But by tradition, the Court will sit at least one day that week, issuing its final (and often, most controversial) decisions. The week will also by definition include Justice Stevens’s final appearance on the bench.

To provide a little too much detail about the Court’s calendar: This year, the Court is very likely to sit on Monday, June 28, and it might sit on Wednesday the 30th; Thursday, July 1 is possible too, but unlikely. The last dates of the term for the past three years have been June 29 (2009), June 26 (2008), and June 28 (2007). But those dates are a little misleading because the fourth week of June in 2010 does not start until the 28th. More illuminating would be to say that the Court has finished the term for the past three years on the fifth Monday (2009), fourth Thursday (2008), and fourth Thursday (2007). If the Court can finish this term on the fourth Thursday, that will be June 24.  But that is ambitious, and the following Monday (the 28th) is more likely.

If the hearings commence on June 28 and the Court finishes its term that same day, the conflict won’t be tremendous. The first day of the hearings is generally taken up mostly by the Senators’ opening statements. The Judiciary Committee could also start the proceedings that day at noon, rather than in the morning. In terms of the vote, expect that Kagan will be voted out of committee by a vote of fourteen to five, with all twelve Democrats and two Republicans in favor. The committee is composed of a lopsided twelve Democrats and seven Republicans. In the past five Supreme Court nominations, only one Senator of the nominating president’s party has voted against his nominee. All the Democrats other than Arlen Specter voted to confirm Kagan as solicitor general, and all are sure to vote to confirm her now. At the time that Specter voted against Kagan, he was a member of the Republican Party; subsequently having switched parties and now facing a very difficult primary election, it seems extremely likely he will endorse her.

That leaves the Republicans. Three Republicans on the committee voted to confirm Kagan as Solicitor General: Hatch, Kyl, and Coburn. Graham did not vote. Sessions, Grassley, and Cornyn voted against her nomination. Of this group, I expect that Hatch (who has shown significant deference to presidents in their nominations, notwithstanding that he did vote against Sotomayor) and Graham (who has tried to serve as a bridge between the parties in this area) will vote to confirm Kagan. But it would be extremely close and would depend on her performance at the hearings, as controversy over executive power and habeas corpus could cause both to vote against her.

I expect that Kyl and Coburn will conclude that a different standard applies to a Supreme Court Justice and ultimately vote against her, pointing to their votes for Kagan for solicitor general as evidence of the fact that they do not base their votes on purely partisan grounds.

Then the nomination will proceed to the full Senate, where Kagan will be confirmed before the end of July. In terms of timing, Sotomayor’s hearing started on July 13, 2009, she was approved by the committee 15 days later on July 28, and she was confirmed by the Senate nine days after that on August 6. Given that control of the Senate remains in the hands of the Democrats and that there is no prospect of a filibuster, a very similar schedule is likely for Kagan. The only uncertainty is the effect of the July 4 recess on the timing for Senators to submit written follow-up questions.

If the hearings commence on June 28, I expect there will be a committee vote in the week of July 12 and a floor vote in the week of July 19 or 26. If the committee hearing instead does not start until July 12 (i.e., after the recess), then the vote on Kagan’s confirmation would likely be on Friday, August 6. Towards the bottom of this long post, which I won’t repeat here, I break down my estimate of which Senators will vote for and against Kagan. I expect the vote to be 65-35. The yes votes will be all 57 Democrats, the two Independents who caucus with the Democrats, and 6 Republicans (Hatch, Graham, Snowe, Collins, Gregg, and Lugar). But again, the hearings will determine whether Kagan loses Graham and Hatch.

The premise of my vote count is that the Kagan nomination won’t do anything to reverse the trend towards the partisan polarization of Supreme Court confirmations. In my opinion, there isn’t a substantial basis for the opposing party to view the nominations of John Roberts and Elena Kagan very differently. Both nominees had served in prior administrations, including in the Solicitor General’s Office in senior positions, and were widely respected for their intellects; neither was regarded as an ideologue. But Roberts received 22 Democratic votes, and as I said I think Kagan is likely to receive only 6 Republican votes. (For conservatives who point to John Roberts’s time on the D.C. Circuit as a distinguishing feature, I note only that he was not a court of appeals judge for very long and offer up the alternative analogy of William Rehnquist, who joined as an associate justice without any judicial service.)

I believe that the more recent fight over the nomination of Samuel Alito (who received only 4 Democratic votes), and the soured relationships in the Senate more broadly, will drive the vote totals on a Kagan nomination, far more than the substance of her views. For that reason, although Kagan will have a number of prominent Republican supporters--for example, Charles Fried, Jack Goldsmith, likely at least one former Republican solicitor general, and perhaps Miguel Estrada (a possibility, given that he endorsed her nomination as Solicitor General)--I doubt that will make much (if any) difference. That is particularly true because, as I discuss below, the most significant developments in the understanding of Kagan’s record in the coming days will harden the traditional ideological battle lines.

For what it is worth, of these, Estrada would be the most important for Republican Senators, by far; more so than even the deeply respected Ted Olson. An Estrada endorsement of Kagan has the potential to swing at least a half-dozen Republican votes.

Now, let’s talk about the substance of the debate over a Kagan nomination: The discussion above assumes that there will be no dramatic shift in the public perception of Kagan in the coming weeks. There usually is at least some development, however. In the case of Sonia Sotomayor, for example, a significant amount of the public debate was driven by the “wise Latina” line in her speeches.

With Kagan, a similarly significant “defining” development is possible, but unlikely. Kagan was required to make extensive disclosures of her finances, writings, and speeches when she was recently nominated to serve as solicitor general. Both liberal and conservative activists have devoted substantial attention to her for the past month. They have mined the existing record for grounds for attack. But nothing substantial has emerged.

The only significant revelations that are reasonably possible at this point would be from the files of the Clinton administration, in which Kagan served both as an attorney in the White House Counsel’s Office and an official in the administration’s domestic policy apparatus. (By tradition, nothing will be released from her tenure as solicitor general.) We will learn soon how broadly the Obama administration will assert attorney-client and executive privilege regarding those documents. But given the length of time this administration has had to review those materials--both during last year’s consideration of a replacement for Justice Souter and in the focused review of Kagan’s record this year--the choice of Kagan means that the White House is convinced that smoking guns will not emerge.

Nonetheless, surprises are always possible, if extremely unlikely. In the remote event that there were a bombshell, the nomination could face trouble. Sonia Sotomayor had built in constituencies on the left and among Hispanics that would have allowed her nomination to ride out even significant troubles, which never emerged. The same was true of the vocal support among conservatives for the nominations of Roberts and Alito. Kagan is highly credentialed and has the full backing of the White House, and liberal groups will rally behind her to fend off attacks, but at this early stage at least, she does not start on day one with an embedded, deep well of support. But as I’ve said, and in contrast to Harriet Miers, there is little to no chance that she will need it.

Within days, I do expect that the dynamic of the nomination will shift from where it stands right now in at least one significant respect. To date, commentators on the far left have criticized Kagan and some on the far right have withheld all out attacks. Both sides have rested their positions on a very thin and mistaken understanding of Kagan’s position on executive power. As their assessment of her on that issue develops, I expect that the traditional battle lines--with the left solidly behind her and the right firmly opposed--will take hold.

Even if that does not occur, an analogy to Harriet Miers is inapt because Miers immediately generated broad hostility among movement conservatives, which won’t be paralleled on the left here. The bottom line remains, moreover, that there simply is no reason to believe that anything will emerge that will significantly disrupt (much less derail) the nomination of Kagan, who has lived a fairly public life and been subject to extensive scrutiny.

That isn’t to say that opponents won’t try. So now I turn to the most prominent lines of support for and attack against the nomination. Here are the “top ten” issues that will be discussed.

1. Qualifications; breadth and depth of experience. Kagan has never been a judge. She has spent very little time as an advocate. Her exposure to the judicial process is thus largely academic. On the other hand, she held significant positions in the Clinton administration’s domestic policy operation. That gives her real experience in policymaking and the legislative process. Her qualities and success as solicitor general will be debated, but the legal issues are too nuanced to take hold in the public mind. Supporters will focus on the fact that Kagan is uniformly regarded as very intelligent; clearly up to the job. She has held among the law’s most prestigious positions: dean of Harvard Law School and solicitor general.

2.  Ideology. Conservative opponents obviously will attempt to frame her as extreme, but Kagan has a short track record that makes that almost impossible. It is ironically the left that is most worried. Some inferences come from her professional choices. Kagan clerked for the very liberal Thurgood Marshall. She twice put her academic career on hold to join Democratic administrations. Her public remarks on ideological questions are limited, but uniformly on the left or center, not on the right.

3. Ability to work with conservatives. Kagan was well known for bringing peace to the fractious Harvard Law School faculty and leading the drive to hire high-profile conservatives to balance the faculty. Look for prominent Republicans, including but not limited to Reagan Solicitor General Charles Fried, to support her vocally and rebut claims that she is very liberal. Supporters will point to this quality in particular as creating the prospect that she can move some conservative justices to the left in certain cases.

4. Gays in the military and "Don’t Ask, Don’t Tell." As discussed in detail in this post, Kagan strongly supported the application to the military of the law school’s longstanding bar to on-campus recruiting by all employers who discriminate against homosexuals. Look for opponents to attempt to describe Kagan’s position as anti-military; supporters will respond with Kagan’s public remarks and veterans who are supporters. Opponents will also attempt (and fail) to establish that she undermined the defense of DADT.

5. Executive power and the war on terrorism. Some liberals criticize Kagan for supposedly advocating a Bush-like view of presidential power; some conservatives have held fire on that basis. That impression of Kagan will change substantially.

6. Detailed answers to senators’ questions. Kagan wrote a scathing article criticizing senators for not requesting, and nominees for not giving, detailed answers to specific questions about specific issues. Kagan will presumably take the approach of all recent nominees and say as little as possible. Look for the article to be oft-quoted by Republicans.

7. Citizens United--the campaign finance case--and understanding the problems of ordinary Americans, not big companies. This is version 2.0 of “empathy.”  Look for the administration to attempt to link this theme to Kagan, but struggle. She does not have the personal backstory of Sotomayor or professional experience in, for example, anti-poverty programs. Supporters may turn to programs she fostered at Harvard. The White House cites the Citizens United ruling as the best evidence of the conservative Court’s pro-business bias. Kagan argued the case for the administration, so there is some link there.

8. Privilege. Kagan served for four years in the Clinton administration, some in the White House counsel’s office and some in the domestic policy shop. Opponents will naturally demand the disclosure of as many of her documents as possible. There will likely be skirmishes over attorney-client and executive privilege, and application of the Presidential Records Act.

9. Diversity. Kagan would be the fourth female Justice. The Court will have three women for the first time.

10. Who knows? Something almost always emerges. For Justice Sotomayor it was “wise Latina.” For Justice Alito it was Concerned Alumni of Princeton. It makes sense to anticipate something for Elena Kagan as well.

Note as well the five issues that will be mentioned in the nomination fight, but won’t blossom into major points of discussion.

1. Big sexy social questions. Expect to see little of the traditional hot-button social issues, other than possibly gay rights in the military context discussed above.  Activists on the left and right will try to link Kagan to abortion, religion, and guns, but there appears to be no hook that will make those big points of controversy. The administration will as a consequence be able to keep the focus on economic questions for the summer.

2. Religion. Kagan would be the third Jewish justice on the Court, along with six Catholics and no Protestants. But religious heritage seems not to be emerging as a real issue.

3. Sexuality. The White House slapped down whispers asserting that Kagan was gay. Among the LGBT community and social conservatives, the issue won’t disappear entirely. But the administration’s response was decisive and fully informed, so it will not emerge as a genuine question.

4. Race in Harvard’s faculty hiring under Kagan. Some law professors complain that the faculty hires at Harvard during Kagan’s tenure were all white.  However unfair it is that this issue could get traction, the truth of the matter is that the suggestion that a progressive woman who served as a dean of Harvard Law School harbored some racial bias will not go anywhere. Conservative opponents will also hesitate to legitimize arguments like that.

5. Goldman Sachs. Kagan served on a board of advisors that had nothing to do with Goldman’s difficulties. The point will be mentioned, but it lacks substance so it will not affect the nomination.