Sunday, May 9, 2010

Elena Kagan

Or so it's being reported (here and here).

I'll repeat now what I said earlier.  In my opinion, the amount of uncertainty about these things far outweighs the perceived differences between potential nominees.  In other words, we have estimates from various pundits and experts about the points on an ideological line where the various rumored nominees will fall.  I think we're all kidding ourselves, however, if we think these are anything other than very, very, rough estimates.  Not only is it impossible to know exactly how any potential nominee will vote once on the court (even if she has an extensive paper trail; writing a law review article, giving a speech, and even writing a lower court opinion are just very different things than participating at the Supreme Court level), but the truth is we really have no idea what the key issues are going to be over the term of a nominee.  Especially when the president follows the current partisan incentives and chooses a young nominee.

Now, that's not to say that all potential nominees are identical; it's just that we really can't know enough to rank them, either on specific issues or on general ideology, with any certainty at all.  So in my view, all that liberals can ask of a Democratic president (and all that conservatives can ask of a Republican president) is someone who will be basically reliable, someone who will generally line up with the "correct" side.  I do think that that much is possible to do, and I think that Elena Kagan certainly appears to meet that standard.  Beyond that, it's all guesswork and crystal-ball gazing, and I think that any liberal who believes that it is certain that one of the other potential nominees was better -- again, on either specific issues or general ideology -- is just blowing smoke. 


  1. I dunno. I mean obviously there's no way of knowing how a judge will rule on any particular issue, but I can't really say anyone appointed to the Court since Souter has turned out to be particularly surprising. Thomas, Breyer, Ginsburg, Alito, and Roberts have all been approximately the judges people expected them to be.

  2. Well, to be fair, Thomas is probably a bit crazier--er, more idiosyncratic--than anyone would have predicted. But I stand my ground on the other four.

  3. Oh, I think that the Prez could find and nominate a pretty reliable lefty, progressive, person to fill the vacancy if that was what he wanted to do. Bush certainly had no problem finding and nominating conservative types, that is, members of the Federalist Society.

  4. Brave Captain of IndustryMay 10, 2010 at 12:00 PM

    Dont forget Alito- he is exactly what everyone expected, to a tee.

    The list of jurists who turned out UNLIKE what we thought we would get is much shorter....

    As with American war-crimes, it seems your imagination is not up to the political question at hand.

  5. Kagan *is* a "pretty reliable, lefty, progressive, person." Or at least the clues to that effect have about the same weight as the clues for anyone else, certainly anyone confirmable. Or, at Yglesias put it today, she's a "clearly, she's a Democrat." In that sense, yes, Alito and Roberts, Breyer and Ginsberg, etc. are what they were expected to be. But anything more fine-grained...I don't think we can get that, no. I don't think anyone could have successfully predicted whether Roberts (and/or Alito) would fall a bit to the right of Scalia, or a bit to the left, or exactly where Scalia is. We knew (i.e. had very strong evidence that) they would be conservatives, and vote with the conservatives most of the time. We know that Kagan will be liberal (i.e. have very strong evidence that) and vote with the liberals most of the time. But anything more specific, we really don't know, is what I'm saying.


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