Friday, August 6, 2010

Supreme Court Nomination Strategy

I'm completely baffled by the logic behind Glenn Greenwald's analysis of the Elena Kagan vote.  Greenwald had opposed Kagan as a nominee because he wanted someone with a clearer liberal track record.  That's a reasonable position (although see below for why I don't think it actually works in practice).  Now, however, Greenwald concludes that because Kagan received five fewer votes than Sonya Sotomayor (and was less popular according to Gallup polling) that the "stealth nominee" strategy backfired.
In other words, the supposedly safe, moderate-appearing, blank slate nominee (Kagan) received fewer confirmation votes, and was less politically popular, than the supposedly risky, clearly liberal nominee with a long record of judicial opining and controversial statements (Sotomayor).  Aren't there important lessons in those facts?  Doesn't that rather clearly contradict the endless excuse-making from the Democratic establishment that muddled moderation is politically necessary?  If you're going to attract a tiny handful of GOP votes no matter what, why not nominate someone who will enliven the public, inspire your base, and provide an opportunity to advocate and defend a progressive judicial philosophy?

I would say: no, there are no important lessons in those facts.  Kagan almost certainly did worse than Sotomayor not because of anything having to do with them as Court candidates, but because Barack Obama was far more popular in spring 2009 than in spring 2010.  Greenwald supplies a nice Gallup chart showing support for various nominees over the years, and a quick glance reveals that support for nominees appears to be highly correlated with presidential approval levels (I don't know of any research on that point; for the general question of how public opinion affects Senate votes on SCOTUS nominees, see work from Jeff Lax, John Kastellec, and Justin Phillips here and on Kagan specifically here; via the Monkey Cage).

Neither nomination wound up receiving much attention from the press, certainly not enough for most Americans to share Greenwald's sense that Sotomayor was "clearly liberal" while Kagan was "moderate-appearing."  Fortunately, we have some polling to look at on that one.  Pew asked whether people thought Kagan (in June 2010) and Sotomayor (in June 2009) asked: "What is your impression of (Kagan/Sotomayor)?  Do you think she is liberal, moderate, or conservative?  In fact, slightly fewer people were willing to answer the question for Kagan (41% saying "unsure") than for Sotomayor (26% unsure).  Of those who did have an opinion, however, a plurality believed Kagan was liberal (28%), not moderate (24), while Sotomayor was the other way around: 34% moderate, 31% liberal.  So whatever Greenwald believes about them (and whatever is actually the case about them), the American people by a small margin found Kagan to be a bit more liberal. 

I think we can safely say a couple of things.  Had the two nominations been reversed in time, odds are that Kagan would have received more votes than Sotomayor.  And, to the extent it mattered, Kagan's lack of a paper trail was almost certainly a plus.  Republicans really didn't come up with much of anything against her, and yet they still voted heavily against the nomination.  It's hard to believe that a specific point for them to rally against would have made it less likely to oppose her.  So I don't think Greenwald's logic here stands up well at all.

However.  I do think all of this raises a more interesting question.  If we take it as given that Kagan is less liberal than other potential nominees, and that Obama's goal is (or at least, from the liberal point of view, should be) to put the most liberal Justices possible on the Court -- did Obama shoot too low?  Kagan received 63 votes, but at least one "no" vote -- Ben Nelson -- was pledged to vote yes on cloture.  So Kagan received at least 64 solid votes for cloture, or four more than she needed.  The question is whether a nominee perceived to be more liberal would have received fewer votes.  Kastellec, Lux, and Phillips do show that ideological extremism costs a nominee votes in the Senate.  My sense is that a four vote margin is pretty slim.  It's very easy for me to imagine those four votes (Lugar, Gregg, Graham and Nelson) slipping away with just a bit more of a nudge, which would leave the nominee with an even 60.  The question then comes down to what would shake the next group -- Collins, Snowe, Bayh, Lincoln, and a few other moderate Democrats.  Against all that is the question of whether all of the Republican opponents of Kagan would have also voted against cloture, which is information we (and, probably, the White House) don't know.

So: was Kagan a good choice if Obama wanted the most liberal Justice that could be confirmed?  My guess is, yes, she probably was, more or less -- it's awful difficult to make these fine calibrations going in.  Actually, I'd say that's true in two ways.  For confirmation, I think it's difficult to tell going in how liberal (or, for a GOP nominee, how conservative) the nominee will be perceived to be.  Robert Bork was, certainly, going to be perceived as conservative...but had he given different answers during his Judiciary Committee hearings, it's certainly possible that he would have been perceived as less extreme.  In this, Obama presumably had pretty good information about the odds of Kagan handling the nomination process well, in which "well" is defined as avoiding as much controversy as possible.

I think far more important, however, is that the error margin on how potential nominees will behave once confirmed is far, far, larger than are the perceived ideological differences between them at the time of the nomination decision.  Of course, a president might want other qualities -- intellect, forms of descriptive representation, and of course age.  But when it comes to ideology, if Obama was choosing between Kagan, Sotomayor, and a handful of other similarly liberal potential nominees and wanted the one who would wind up the farthest to the left on the bench, I think the correct answer is: he can't know.  We can't know.  Kagan and Sotomayor, most likely, don't know.  We can be fairly certain that Kagan and Sotomayor will be more liberal than, say, Roberts and Alito, but no one knows which of them will wind up farther to the left, or which of Roberts and Alito will wind up farther to the right.  So for a president who wants a reliable ideological vote, the things to look for are indications of basic orientation (are we sure she's a liberal?) and whether she can be confirmed.  Beyond that, I think, is just speculation and guesswork.


  1. I think you're underestimating the extent to which we can know about a nominee. Kagan had practically no track record, so obviously we don't know a lot about what kind of judge she would be. Greenwald's preferred nominee--and mine--was Judge Diane Wood, and we know quite a lot of about the kind of judge she is. For one thing, we know a lot about her views on executive power, and for those of us on the left they are quite good. Kagan's views on that critical question were either unknown or at least somewhat suspect. Of course despite that Kagan could end up being great and Wood could have moved to the right for some reason, but the odds certainly would be the opposite given the available information.

    Beyond that, Wood has a proven track record of bringing conservatives over to her side on the court on which she serves and could have counted on support from influential conservative judges. Kagan, while supposedly friendly with conservatives, has no such track record of judicial persuasion because she has never served.

    You're right that we can never be sure about a nominee (and I agree with you that Greenwald's argument about Sotomayor getting more votes is silly), but looking at the paper trail lets us do more than mere "speculation and guesswork"-- it can give us a pretty good sense of what kind of judge someone will probably be. If Greenwald is a bit extreme in his certainty that Wood would have been great and Kagan likely will not, you're moving to the other end and implying we should not even bother looking at a nominee in detail beyond basic orientation and confirmability. I think that's extremely wrongheaded and am rather surprised to even hear such an argument (if I'm misreading you then my apologies).

  2. I think that the track record of justices being far different from how they were "expected" to be speaks to this question. None of us have access to the meetings where a president or their staff may or may not have asked very specific questions to gauge their ideologies. But, we know that a lot of fairly hard-working and savvy people spend a TON of time vetting potential nominees. And, even after all that work is done, you end up with a guess. The best example that comes to mind is Souter. While he was a bit of a blank slate, and was nominated in divided government, I don't think Bush expected him to be where he's been. Eisenhower certainly wasn't trying to usher in the biggest expansion of civil liberties/civil rights in US history. I think that Jon's point is that, no matter how precise your estimate of their previous ideology is, IS is different from WILL BE.
    (sorry for caps...trying to make "is" stand out)

  3. Jon:
    I made this comment over at Monkey Cage, but it fits better here.
    Isn't the relevant concept not how popular Obama is in the general population, but how unpopular he is with the GOP base?

  4. I can't believe we're talking about Sotomayor as a sort of standard of liberal Justices. Don't get me wrong, she hasn't made many votes that most liberals would disagree with, and she's even staking out positions clearly on the left edge of legal thought (Questioning corporate citizenship). But when she was nominated, liberal critics- rightly!- pointed out that George H. Bush had nominated her before, and that her career had been in criminal prosecution. That's not a background that we can clearly draw "liberal!" from, and that background was about 80% of everything we knew about her. That she's ended up comfortably on the left is nice, but it does little to prove Greenwald's point.

    "I don't think Bush expected him to be where he's been. Eisenhower certainly wasn't trying to usher in the biggest expansion of civil liberties/civil rights in US history."

    I think those both have exigent circumstances, though. Souter was considered the first "Stealth nominee" by some people; he had a very short paper trail, and Bush just seemed to take John Sununu's advice that he'd be a reliable conservative. And of course, Sununu was advised by Warren Rudman, who for years afterward boasted about how he pulled one over on the Bush White House. That being said, while Bush would probably have preferred Souter to be a solid pro-life vote if only for political reasons, he probably didn't have broad and deep problems with how Souter ruled.

    As for Ike's nominees, you have to remember that this was an era with much less prestige for the Supreme Court and much less focus on it's nominees. Truman had basically used it as a dumping ground for his drinking buddies and Cabinet officials who got pissy. So, in that context, it shouldn't be surprising that Ike used the Court only as a political tool. He nominated Warren because he promised him that in exchange for help at the 1952 Republican Convention. And he nominated Brennan because he thought he'd need help with northeastern Catholics in the 1956 election. Generally, considerations that a SCOTUS nominee might be "outside of the mainstream" just weren't done back then.

  5. We also need to consider the importance of age. Kagan is 50, meaning she could easily serve for the next 20 to 30 years if not longer. Diane Wood is a good 10 years older than Kagan, and just eight years younger than Souter at the time of his retirement. Even if Kagan isn't the ideal liberal justice, her relative youth is a plus for a president wishing to influence the ideological direction of the Court for the generations to come.

  6. "Eisenhower certainly wasn't trying to usher in the biggest expansion of civil liberties/civil rights in US history."

    Earl Warren was governor of California and was regarded as leader of the liberal wing of the republicans. That was exactly the reason he could help Eisenhower. So Ike should have known what to expect.

    As for supreme court judges being less important back then: Doubtful, after all Taft did go from president to supreme court judge; see also the quite public battle between the court and Roosevelt.

    More to the point: The results speak more for Greenwald. She did got five votes less. So her ability to be confirmed was not better after all. And if the positions of a judge are not to be divined, why is she easier to confirm? After all, conservatives must be as blind and just see another democrat.

  7. Warren was regarded as a liberal Republican in 1952, but he had been a law-and-order man his whole career. Before he was governor, he had been attorney general and county prosecutor. Ike seemed to have been genuinely shocked by many of his rulings on the Supreme Court.

    Why would anyone think Obama would want a Court that restrains executive power? No president wants that.

  8. Truman's appointments to the Supreme Court were so underwhelming and based on cronyism that one has to suspect that he just didn't care very much.

    Eisenhower didn't know much about constitutional law (he tended to defer to Attorneys General Herbert Brownell and William Rogers), but he did insist on a high standard of competence. Four of his five nominees met that standard: Warren, Brennan, John Marshall Harlan, Potter Stewart. Only Charles Whittaker failed.

  9. Well, I think Truman did care -- about taking care of his cronies. Less care about the intelligent running of the institutions of gov't and the Constitution it would appear. Still a puzzle to me why, with all those pretty mediocre to bad SupCt picks, that he's been elevated so much in the estimation of historians. Wildly overrated prez.

    In the case of Ike, while he might have thought he was getting moderate-to-liberal attitudes with Warren as CJ, he might also have assumed he would get the same tough-minded Warren of 1942 (CA's AG) fame who argued for the internment of the Japanese-Americans. And for Warren's part, one wonders whether in civil rights, he was going for an aggressive make-up call to partly atone for his actions of 1942 (just my guess, I haven't read his memoirs).

    Re SupCt nominees being less important back then, yes in part. At least in terms of the modern GOP instituting a rigid set of ideological hurdles that a potential must pass, in addition to setting the age requirement much lower to cynically take advantage of the Con's lifetime appointment for fed ct judges. The GOP has greatly politicized the nomination process and turned it into an ideological battleground, even as some nominees claim to only want to objectively call balls and strikes (cough, cough) ...

  10. I agree with Jonathan that Obama's approval ratings are a factor in explaining the differences in public support between the two nominees. Perhaps more important, however, is the fact that Sotomayor was the first Hispanic nominee to the Supreme Court. For political reasons, many Republicans--not all, but many--were relatively restrained in their criticism of Sotomayor. Furthermore, a good deal of press was devoted to Sotomayor's humble beginnings and "against the odds" story. I think it was Sotomayor's life story, and not her judicial leanings, that primarily explains her popularity relative to Kagen.

    Anyway, Jonathan, I don't know how you can waste keystrokes on such trivial matters while the performance of Andres Torres remains unexplained. I mean, it was fairly easy to dismiss his excellent 170 plate appearances in 2009 as a fluke. But he's now got a 129 OPS+ after nearly 600 PAs over the past two seasons. This guy could never even really hit in the minors (in which he spent an entire decade), and now he's a plus player in the majors at the age of 32? I keep waiting for the "fluke" to end, but it's just going on and on. Go Giants.

  11. "The results speak more for Greenwald."

    Not really; Greenwald's essentially refuting an argument no one made. No one said Kagan would be easier to confirm than Sotomayor, and they certainly didn't say that she would be because she was more "centrist" (again, one year ago, Sotomayor was the centrist "sell out" candidate). All the predictions, from the beginning, were that she'd be confirmed, but with noticeably less votes. Congratulations, Glenn! You were able to recognize what everyone else predicted, using nothing but hindsight!

    Now, why did Kagan get less votes? No clue. Maybe it's because a (statistically isnignificant) smaller number of people thought she was liberal. Maybe it's because there was no "history" element to this one, so Senators felt safer voting against her. Maybe it's because Obama is less popular, or because Republican Senators see more of a political upside in complete opposition than they did a year ago. Could be a lot of reasons, but since no one was claiming she'd get MORE votes 'cause she was centrist, it's pretty weird that Greenwald is spending ANY energy refuting that argument.

    (Of course, I might actually question if Sotomayor WAS an easier confirmation; yes, she got more votes, but the White House and liberal allies had to spend a lot more time and energy walking back intemperate statements. And, I dunno, essentially, it was only 4 less votes, with one of those being swapping out Martinez for the LaMeiux, 3 less votes seems like an awfully small sample to draw any real conclusions from).

  12. Let me expand on what I said above for clarity: Sotomayor got 68 yeas, Kagan 63. But Ben Nelson said he'd vote for cloture, so clearly, he wasn't really against her. And one of Sotomayor's yeas- Mel Martinez- has been replaced with George LeMieux. Martinez had a clear reason to support Sotomayor (and, as he was retiring, no clear downside), while LaMieux, being appointed by a governor who has since bolted the Republican Party, has a clear reason to oppose any Democratic nominee, if he wants to have any future political career.

    So that just leaves Voinovich, Bond, and Alexander with no clear explanation for shifting their vote. And I don't know why they switched, but even if they all switched for the same reason, I don't think that reason tells us much. It was only 3 guys, and 2 of them are retiring.

  13. Geoff,

    No, you're reading me correctly, so we disagree. I think there are a couple of is that the key issues that will matter are not very predictable (not just which issues, but which issues will both matter and be closely contested). And, second...we've just seen plenty of shifts over the course of one Justice's career. I don't think we'll ever again (at least if things stay vaguely similar) get another Sutter, but O'Connor shifted over the years, as did Stevens, and I think Kennedy to some extent. So even if you can correctly predict their initial ideological placing, it might shift over time.

  14. Thanks Jonathan for your reply, and I hope you don't mind a bit of a riposte (too long, for a riposte). You're speaking in general terms and I basically agree with you if we keep it general, but the specifics of any nomination process obviously change over time, and I think therein lies part of the disagreement.

    2010 is, of course, not the same as 1990 (when David Souter was confirmed), and we're coming up on 9 years since 9/11. In that time we've seen a number of critical Supreme Court decisions regarding executive authority (e.g. Hamdan v. Rumsfeld). It's a very fair guess that SCOTUS judges will deal with more executive authority cases going forward. Personally I think these are extremely important cases (perhaps the most important), and I want any SCOTUS nominee to be pretty "on point" on these kind of issues (i.e. on the left or liberal side).

    Maybe President Obama and I disagree on questions of executive authority--in fact that's pretty damn likely. Someone with different politics and beliefs about executive authority would feel differently than I do about the Kagan nomination, and the president is perhaps just one of many who feel that way. But as a lefty (and a relatively savvy observer of American politics, hopefully) I think there was another very confirmable nominee with more verifiable bona fides on executive authority. As such I see no reason (yet) to avoid lamenting Kagan's nomination, or to abandon the idea that gaining fairly detailed familiarity with a nominee's previous record is not worth one's time.



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