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.

Grading My Kagan Prediction

Sure, why not.  It's worth a quick post, no?

Here's what I said:

I see that Orrin Hatch has declared himself a "no."  I think I'll go out on a limb and make a prediction: 36 "no" votes, or five more than against Sonya Sotomayor.  Republicans supporting Sotomayor were Alexander, Bond, Collins, Graham, Gregg, Lugar, Mel Martinez, Snowe, and Voinovich.  Martinez is gone, with LeMieux and Brown added to the conference, so I'm saying that all 31 will stick, plus five of the group of ten will flip.  And I'll say that the most likely flipper in the other direction, no on Sotomayor but yes on Kagan, is Bob Bennett.  

Nailed it!  On the Republicans: Alexander, Bond, and Voinovich flipped, and LeMieux and Brown both voted no, so that makes 5 of 10, or exactly 36 "no" votes.

Well, I nailed it on the GOP.  I totally didn't see the Benator coming.  It's a logical vote.  The Democrats didn't need him on this one, and they very well might next time around, so in his quest to be as centrist as possible it made sense to toss this vote the other way, making it easier for him to stick with the Dems if he's really needed on a future nomination.  I'm not predicting how he'll vote if there's a next time, just saying that it's a rational act on his part -- or, to put it another way, I should have at least mentioned the possibility, and so that's a clear miss on my part.

I should also mention that (as usual) my speculation about LeMieux hasn't turned out to be worth anything.  Also, the Scott Brown vote is interesting.  He's mostly voted as a moderate, as if he was interested in re-election, but this vote doesn't fit that pattern at all.  Is he concerned about renomination?  I don't know.

Anyway, I'm now going to act insufferably pleased with myself for calling this one.  To the extent I did.  Thanks, Ben Nelson, for keeping my humble.

Elena Kagan Confirmed

And so, we have a new Supreme Court Justice, as expected.  Final count: 63-37.  Five Republicans and one Democrat defected.

I didn't post (or tweet) much during the floor debate, because, well, it was pretty dull.  Look, this isn't a partisan blog, so unlike United States Senators I can be honest about these things.  This is politics.  The Supreme Court is part of the political system; their decisions, while certainly driven by law and precedent, are nonetheless political actions.  Elena Kagan was chosen because the president believes she'll be a reliable vote on the Supreme Court, and because he hopes that she'll be so for a long time -- exactly the same reason that every nominee has been chosen for at least the last couple decades.  Republicans opposed her because they think she'll be a reliable vote for a long time.  However, there's a lot of pretense about the Court not being political, and most everyone believes in retaining that pretense.  All of which leads to a lot of convoluted statements on both sides.  The Republicans spent an hour (at least) on guns this morning, arguing that Kagan didn't believe in Second Amendment rights...but she claimed she did, so she couldn't be trusted.  At one point, one of the Senators (sorry, I forgot to make a note of it.  Sessions?) proclaimed his incredulity at Kagan's claims to have not studied the historical record surrounding the Second Amendment.  And so he had to vote against her, not because she's not a reliable vote on guns, but because her lack of honesty on that issue disqualified her.  It was, of course, the mirror image of Democrats who said the same things when Republican nominees claimed in the past to never have given any thought to abortion.  Of course, the truth is that Republicans support gun rights, Kagan probably doesn't agree with them, and that -- and not questions of trust or lofty judicial philosophy or, certainly, the "empathy standard" that the GOP goes on about -- is why they oppose her.  It's fine, but it doesn't make for very interesting floor debate.

Meanwhile, the real question here is what will happen in 2011-2012.  As I said, five Republican Senators -- Collins, Graham, Lugar, Snowe, and the retiring Judd Gregg -- defected; Ben Nelson also defected, but said he would vote for cloture.  The obvious question is: what would have happened if there were only 52 or 53 Democrats in the Senate, or for that matter 48 or 49.  Elena Kagan appears, by all accounts, to be a mainstream Democratic nominee; she certainly wasn't on the short list of liberal advocates, although she was broadly acceptable to most of them.  Can any Obama nominee be confirmed to the Supreme Court next year?  The problem here is that compromise is almost impossible to imagine over the Court.   Does anyone believe that Thune, DeMint, and the other Senators who may be running for president next year could accept any nominee from Barack Obama?  And, after Bob Bennett and the rest of the primaries this year, does anyone believe that more than a handful of Republicans will stand up to the threat of a primary?

I don't really expect a full-blown train wreck over the budget, or over any must-pass legislation next year, no matter how well the GOP does in November.  But if there's a Supreme Court opening, and if the Democrats hold fewer than, say, 55 seats in the Senate, I think the odds of a real train wreck, a total stalemate, have to be well over 50/50.  And, again, if the Democrats fall below 55 Senators, I'll be surprised if the Senate manages to confirm very many Appeals Court nominees.   

Why No Cloture on Kagan?

I'm puzzled as to why Harry Reid didn't plan for and insist on a cloture vote on the Elena Kagan nomination.

For Democrats, a cloture vote would have been easy enough; there's no possible political cost to voting yes on cloture for something that you're happy enough to support on a final vote (and Ben Nelson announced right away that he'd vote for cloture, so there's no real extra cost for actually doing it).  For Republicans, however, a cloture vote would be at least somewhat difficult.  Republicans are pretending that there was no filibuster against Kagan.  In reality, of course, there was a filibuster, because Republicans (by insisting on 60 votes) have filibustered absolutely every single bill and nomination during this Congress.  That really wouldn't change if Republicans, not having the votes to block Kagan, voted in favor of cloture and therefore the principle they claim to support that judicial nominations should not be filibustered.  However, a vote for cloture would be dangerous for Republican Senators, running the risk of attacks from Tea Partiers and others who want maximum resistance at all points, whether or not it would make any difference.

So why no cloture vote?  I really don't know.  There may be some procedural reason...I know that multiple cloture petitions can ripen at the same time, but while I have a fair understanding of Senate rules and procedures, I'm certainly not an expert on all the details, and there may be some obscure parliamentary reason why forcing a cloture vote would hurt Democratic efforts to get things done before the August recess (see, for example, here, although I'm not sure it would have been an obstacle to an affirmative plan by the Democrats to hold a cloture vote).  It could have been part of a deal with the Republicans for some procedural concession.  But it sure seems to me that Reid could have put a few Republicans in a tough spot on this one.

More generally, it does seem to me that one of the useful things that Democrats can do right now, given the descent into crazy by a fair-sized portion of the GOP, is to force more tough votes on Republican Members of Congress.  Perhaps we need a roll-call vote on whether to congratulate Barack Obama on the occasion of his birthday.  Or a resolution establishing National Bike Path Week.

Kagan Floor Debate

You know what's really silly?  Senators who complain that the Judiciary Committee hearings on Supreme Court nominees are content-free -- when the main thing that's content-free is their own speeches.  Actually, the worst of the lot are the opening statements by Senators during committee hearings, but the floor statements today were quite impressively useless, too.  I listened to a handful (there will be many more this afternoon, but I think I've had enough). 

Anyway, the one I found really striking was Senator Jon Kyl's speech in opposition.  Now, it wasn't the most fun, really; for me that would be Senator Jeff Sessions' implication that one good reason to vote against Kagan was that she was from Manhattan's Upper West Side (it was in the context of guns, and no, he didn't spell out exactly what he meant by that, but it wasn't really necessary -- of course, her, uh, cultural background is also the strongest evidence most of her supporters are leaning on in trusting that she will be what they want on the Court).  Anyway, my guess is that Kyl may have some very strong quotations sitting around from 2001-2008 in which he unambiguously claimed that opposing a nominee on ideological grounds was wrong.  Why do I think that?  His speech was framed around the idea that Kagan must be opposed because she lied (although he stopped short of using that word) to the Judiciary Committee.  Now, it turns out that what she lied about is her radical liberal agenda...Kyl went over each of the Republican charges against her, noted that she denied them all, repeated the "evidence" for them, and concluded that she was deliberately disingenuous with the committee.  As if he would have been glad to support her if only she had admitted to her rapid hostility to the military, her deep and abiding hatred of guns and gun owners, and her insistence that foreign law trumps American law at all times.  Or something like that. 

The whole thing, of course, is silly.  Both sides pretend that what they care about is judicial philosophy, when what they really care about are results.  Solid partisans on both sides pretend that they will oppose nominees only if they're extremists, but in fact solid partisans are pretty much going to oppose anyone that the other party's president nominates (although actual voting decisions when confirmation is in doubt may be strategic).  And both sides are weighed down by previous statements when the partisan context is different about the legitimate grounds (and methods) for opposing nominees.

What's more interesting is the potential train wreck ahead if Republicans reduce or eliminate the Democratic majority in the Senate and still choose a rejectionist strategy.  We really would be in new territory if there are 41 or more Senators determined to vote against any judicial nominee the President sends up.  That may not happen; Republicans may choose to negotiate for moderate nominees, and then let them be confirmed.  But if it does, it surely will make for interesting times.

Maybe We Should Just Pretend

"We demand to be treated like little children!  Condescend!  Be more patronizing!"

Via Yglesias, that seems to be the message that movement conservatives, at least in the person of Erick Erickson, are sending to GOP Senators:

Elena Kagan is too radical for a lifetime appointment to the Supreme Court.  Senators would be committing a high act of confirmation treason if they allow this nominee to go on the court without attempting to filibuster her nomination.

Of course, as I've pointed out again and again, Republicans are filibustering Kagan, in that as with all legislation and nominations they're demanding 60 votes for passage.  That's not at stake here.  Note that Erickson does not address his post to those marginal Senators likely to support Kagan (Snowe, Collins, the Benator).  No, he's making demands on mainstream conservatives, specifically that they go through the motions -- that they force a losing cloture vote, and perhaps read some recipes.  That's what he's asking, right?  For them to "attempt to filibuster." 

This is exactly the kind of demand-for-pretense that ruined Christmas week for a whole bunch of Senators and Senate staff, when talk show hosts insisted that Republicans use every possible parliamentary trick...to make sure that a bill that was going to pass either way passed on Wednesday, instead of Monday.   Hey, conservative rank-and-file: your leaders are playing you for saps. 

Silly Season Approaches on Kagan (Plus, a Prediction)

Here's the problem: about 30, maybe as many as 35, Republican Senators are going to oppose confirming Elena Kagan to a seat on the Supreme Court.  And, alas for them, they have to explain why they're doing so.  Uh oh!

Why is it a problem?  Well, why are they actually voting against her?  There are two sorts of answers, both correct.  One is simply that she's a liberal, and they're conservatives.  The other is the Bob Bennett answer: they're scared for their careers, believing that a single "liberal" vote could wind up producing a primary challenge from true believers.  That's a problem because you're not allowed (by the norms of political discourse) to say that you're voting against a Supreme Court nominee because you're afraid of those crazy Tea Party nuts -- and because many Republican Senators had loudly proclaimed under different circumstances that one should not oppose a nominee simply on ideological grounds.  Moreover, because Elena Kagan is such a blank slate, there are no real obvious ways to claim that she's "out of the mainstream," which everyone agrees is a legitimate reason to oppose a nominee.

So either they're going to have to just say that she's a liberal, they're conservatives, and that's that...or, they're going to have to manufacture reasons.  I think the former is by far the better course; I think that the norm against such explanations is mostly foolish.  However, I think we're going to get far more of the latter: "I'm want to vote for the president's nominees, but this one is so extreme because..."   And I do expect whatever they come up with to finish that sentence has a high probability of being amusing.  Just remember: what's really going on here is a combination of simple ideological disagreement, along with extreme fear of being labeled a RINO.  Most likely scenario: over the next couple of weeks, someone finds something new in the document and email dump that can be twisted out of context to prove she's a monster, and it becomes a mini-flap on the talk shows, giving GOP Senators a good hook on which to hang their "no" votes.

I see that Orrin Hatch has declared himself a "no."  I think I'll go out on a limb and make a prediction: 36 "no" votes, or five more than against Sonya Sotomayor.  Republicans supporting Sotomayor were Alexander, Bond, Collins, Graham, Gregg, Lugar, Mel Martinez, Snowe, and Voinovich.  Martinez is gone, with LeMieux and Brown added to the conference, so I'm saying that all 31 will stick, plus five of the group of ten will flip.  And I'll say that the most likely flipper in the other direction, no on Sotomayor but yes on Kagan, is Bob Bennett.  

No idea whether they'll force a cloture vote or not.  They're behaving as if they believe there's something at stake in being able to deny that they're filibustering, but on the other hand there's definitely going to be pressure from conservative groups to fight hard against Kagan.  As I've said, I think Harry Reid should go ahead and file a cloture petition and force a vote anyway.

Kagan Wrap-Up

Well, let's see.  She's going to be confirmed.  She'll probably draw about the same size of opposition as Sotomayor did, about 30 or so Republicans.  They seem to have even less to hang their hats on, but the threat of eventual primary challenges has grown since last year, so I'm assuming that the safe move for most Republicans is to vote no.  I really haven't watched much TV coverage -- I listened to almost the entire two-plus rounds of questioning, and that's really enough -- but I did hear one conservative pundit complaining about the lack of spine shown by the Republicans in supposedly not filibustering, so if there's a lot of that out there it's possible, I suppose, that they'll force a cloture vote.  If I were Harry Reid, I'd insist on it, just to mess with them.

It's hard to grade the confirmation hearings, because it's difficult to know what the point of it is.  One of the Republicans, I think it was Tom Coburn, pretty much seem to think it was all a waste of time.  I don't think so.  Here's what I said at the beginning of the week:

Lots of stuff in democracies is about putting things on the record, and about forcing our elected and appointed leaders to explain themselves.  In general, our political culture doesn't do well with pre-ordained outcomes.  We tend to, on the one hand, look for the Perry Mason moment when one side concedes that the other is correct; on the other hand, we want everyone to make up their own minds based only on the arguments they hear today, without any long-term commitment to groups or ideologies interfering with our pure exercise of unattached reason.  Since both of those things are far more myth than reality, people get frustrated with things such as judicial nomination hearings, Congressional floor debate, and for that matter candidate debates, even though (in my view) each of those fulfill very important and useful purposes.

I'll stick with that.  The structure of the hearings isn't great...we'd be far better off with no opening statements from the Senators, and with a couple of lead questioners on each side, rather than everyone having equal time.  On the other hand, because Elena Kagan had managed the impressive accomplishment of apparently living her life in anticipation of a Supreme Court confirmation battle, the questions were generally substantive, with the big exception being the close examination of her record with the military recruiters.

The last bit of this is that it shares something with campaign stump speeches: the professionals watching have seen it all before and find it mind-numbingly boring.  Unfortunately, what it does not have are mobs of people paying close attention.  So we have a ritual of the Court and the Constitution, watched mainly by people who have heard it all before, most of whom are looking for Perry Mason moments that the hearings can't, and probably shouldn't, deliver.  In other words, a lot of the complaints about these hearings show a problem with the audience, not the event.

I'd add one more thing...Scott Lemieux notes that what we know now is what we knew going in, that Kagan is "liberal in a broad sense" but that where she sits on the a spectrum "from Larry Summers to Thurgood Marshall...is likely to remain a mystery."  He's right -- but I don't think that's a problem with the process.  We don't know, because as she approaches a twenty year career on the Court, give or take twenty years, even Elena Kagan probably doesn't know.  She's going to evolve and change as she adapts to her new role.  And how that happens will be in part her general approach now, in part her specific ideas now, in part unknowable changes in her over time, and in part unknowable reactions between her, the specific cases that the Court will deal with, and her colleagues over time.  If we had a nominee with, say, a record of speeches and law review articles stating clear positions on many of the things on which Kagan has no record, the unknowns would still swamp the knowns.

(Update: Typos fixed).

Kagan. Day One

Day one of the questioning, that is.  Just two quick notes for now...

First of all, I try to keep up with all the wacky ideas out there, from all factions and fringes of the political culture.  From the Tea Party crowd I know the arguments for why income taxes are theft, why the ACA individual mandate is unconstitutional, and why direct election of Senators ruined the republic...but I have to say that the flat-out attack on precedent was a new one for me.  For those not watching carefully, and for those who were wondering what Tom Coburn was talking about in his questioning today, please see this op-ed by Senator Jim DeMint declaring that he opposes Elena Kagan's confirmation on the basis of her commitment to respecting precedent.  It's true, of course, that liberals spent much of the last decade increasingly clinging to stare decisis, so I'm not exactly surprised.  But as Coburn and DeMint tell it, it sounds less like a case of pragmatic adjustment on questions of procedure than the direct election of Senators thing, a principled-but-ignorant, well, wacky idea. 

(By the way, Senator Coburn: exactly how is allowing for a federal minimum wage responsible for budget deficits?  Oh, never mind).

Second thing...I'll continue live-tweeting tomorrow, at least through the first round of questions.  I hope those who are following it enjoy it.  I also recommend Adam Serwer and Dahlia Lithwick, who I think are giving somewhat more substantive tweeting coverage than I am -- although I'm the only one who noted that shell have to recuse herself from any cases with robot litigants.  I like think that I'm fairly good at judging how these things are playing, but in this case...well, my wife grew up about six blocks from where Kagan grew up; my dad's from the Bronx; and, overall, I may be a westerner, but Upper West Side New York Jewish sensibilities aren't exactly foreign to me.  In other words, while I think she's doing amazingly well as far as the theater of it is concerned, but I have no sense at all of how her humor and attitude would play in Michigan, or North Carolina, or Iowa (where, I'm told, they just really love Chuck Grassley.  Go figure).  So I'll be looking out for some coverage from people as unlike me as possible, just to get a reality check.

You Won't See Me

Chris Bowers is concerned about future Court selections:

That Republicans are basically giving up any attempt to defeat Kagan, despite her low poll numbers, is a ratification of the blank slate strategy for Supreme Court nominees...At the end of a very hot June, with political attention still turned elsewhere, and with Kagan effectively pulling off a blank slate strategy her whole life, her confirmation appears certain.  More worryingly, it also seems certain that any future President will be able to replicate this blank slate strategy with any nominee.  If there is a way to defeat it, no one appears to have figured it out yet. 

Matt Yglesias agrees.  

I'm not so sure.  Yes, Elena Kagan is by all accounts going to be confirmed.  But I'm really not sure things would be all that different if she had a somewhat longer paper trail, complete with controversy.  The Sonia Sotomayor case isn't identical, but it's similar -- and in that case, 31 of 40 Republicans voted against her.  I expect about the same number to oppose Kagan.  If there were 55 Republicans instead of 40 or 41, then we'd be talking about somewhere around 45 "no" votes, and it's fairly likely the nomination would be defeated by filibuster. 

On the other hand...what kind of evidence would push moderate Democrats and the two Senators from Maine to vote against a nominee?  In fact, moderate Democrats have a history of supporting nominees from both parties: they voted for Roberts, Alito, and Sotomayor, for Ginsburg and Breyer.  Even, for the most part, for Thomas.  The same with Snowe and Collins (who were not around for Thomas, so we don't know about that).  The only (fairly) recent nominees to lose support from the center was Robert Bork, and he needed a highly controversial paper trail and a confrontational hearing style to manage that.  Now, that's before the full 60 vote Senate, and I don't think it would be possible for Thomas or anyone else to get confirmed 52-48 today.  But the question here is about the voting behavior of the moderates, and the evidence is that they like voting "yes" on confirming Supreme Court Justices. 

So my guess is that Barack Obama had very little trouble finding someone who could get confirmed, given the size of the Democratic majority. On the other hand, Yglesias says:

So arguably if Obama really likes Kagan, he should have kept her in his back pocket as a possible “blank slate” nominee to be deployed in the future at a time when the Republicans have a stronger objective position in the Senate. 

Perhaps -- but  I'm not entirely convinced that there are a set of Republican Senators who are going to base their decision on, well, the nominee.  At any rate, I don't think the "blank slate" strategy is working with most Republican Senators; we'll see, but as I said I expect Kagan to draw about the same level of opposition that Sotomayor received.

The larger point here is that it's important not to assume that winning -- whether in elections, or confirmation battles, or in getting a bill passed -- implies that the strategy employed was correct, much less necessary. 

The Kagan Hearings

I haven't had time to check out the paper about confirmation hearings by Lori Ringhand and Paul Collins that's getting plenty of attention this morning.  What I can say is that the questions are generally (but not always) substantive; the answers are often not; and it's unlikely that any of it changes any votes in the Senate.  But that doesn't make the process useless.  Lots of stuff in democracies is about putting things on the record, and about forcing our elected and appointed leaders to explain themselves.  In general, our political culture doesn't do well with pre-ordained outcomes.  We tend to, on the one hand, look for the Perry Mason moment when one side concedes that the other is correct; on the other hand, we want everyone to make up their own minds based only on the arguments they hear today, without any long-term commitment to groups or ideologies interfering with our pure exercise of unattached reason.  Since both of those things are far more myth than reality, people get frustrated with things such as judicial nomination hearings, Congressional floor debate, and for that matter candidate debates, even though (in my view) each of those fulfill very important and useful purposes.

Now, all that said, the opening statements are almost always disasters, and I'd be happy if we could dispense with them and jump straight to the questions...or, better, get each side to pick their two best and limit opening statements to just four Senators. 

I'll have the TV on and I'll probably be tweeting on and off throughout the hearings, if I hear anything worth reacting to.  As usual, my live-tweeting is far more like theater review than it is careful analysis...the smart money seems to be on Al Franken to be the star player for the Dems, but again the format it pretty unwieldy for anyone to make much of a positive impression.  It's a lot easier to look like a doofus, and more to tweet about, too -- so we'll see who achieves that.

Good Congress, Bad Congress

I wrote an item earlier in the week casting doubt on the idea that people would ever pay attention to the mind-numbingly boring details of the banking bill conference committee, but I should have added one other thing: it's too bad that they don't.  It makes Congress look good.  They're obviously hard at work (and going late into the night at times); they seem to know what they're doing; and overall it's a much better side of Congress than most people ever see.  There's some posturing, sure, but a whole lot less than people are used to.  Which comes to mind not just because I watched some of the conference committee late last night, but also because we're coming up on one of the occasions that makes Congress look about as bad as possible: the round of opening statements during the Senate Judiciary Committee hearing on a Supreme Court nominee.  Alas, that's one of the things that people actually do watch -- the cable networks go live, and the arguments and topics of discussion are all familiar and relatively easy to follow. 

Now, I assume that most people watching the conference committee in action would be totally lost, in one sense -- the procedure is obscure, and the issues technical (OK, maybe it's just me -- I just can't bring myself to get interested in the policy details of this issue at all).  Still, I don't think people would watch this and get the impression that politicians are preening clowns, which is exactly the impression people will have of Senate Judiciary when their hearing gets started, at least if past results are any guide to future performance. 

My suggestion for those of you reading this -- and if you are, you're certainly in the upper sliver of high-information, high-interest citizens when it comes to politics and public affairs -- my suggestion is that if you've never watched a Congressional committee markup or conference committee, that you make an effort to watch one.  Floor action, hearings, election campaigns...that's when we see our Members of Congress, but it isn't when they do serious legislating.  Now, a fair amount of legislating goes on behind closed doors -- which is entirely appropriate, by the way.  But, still, if you're interested in politics, I really do recommend watching a mark-up sometime.  Well, at least fifteen minutes, half an hour, something like that, to get a taste of it.  I'm certainly not claiming that if more people watched committee markups that everyone would love Congress; I know everyone hates Congress, and they always have and they always will.  I'm just saying that it would be nice if at least those who care the most and spend the most time on politics would at least get some sense of what Congress actually does when it writes laws.

Me, I'm trying to figure out how to survive the Kagan hearings.  I'm thinking maybe a lot of really sarcastic live-tweeting, maybe. 

Kagan is Being Filibustered

Nothing new here, but as long as Mitch McConnell continues to claim that there's some question about whether or not Republicans are using the filibuster against Elena Kagan, I might as well continue to point out that this is entirely phony and disingenuous, and the reporters really shouldn't play along.

Of course the Republicans are using the filibuster against Kagan.  What seems likely is that they don't actually have the votes to sustain a filibuster -- barring surprises, it appears that she'll be confirmed with more than 60 votes.  But they haven't abandoned their choice that everything must have 60 votes to clear the Senate.  If they had 60 votes against confirmation, they would also have 60 votes against cloture.  And if McConnell claims that Republicans haven't decided yet about a filibuster, the correct follow-up reporters should ask is whether he is considering voting yes on cloture and no on the nomination.  The answer, of course, is that he isn't. 

Kagan, or any other nominee, isn't going to be confirmed by a 53-47 vote.  If there were only 53 votes to confirm, then there would also be only 53 votes for cloture.  Or, if Democrats held the balance (as in the current Senate) and voted against confirmation and for cloture, they would be attacked by Republicans for casting a phony vote against her, with the "real" vote, the one on cloture, being the one that counted.  And all of that is true whether or not Republicans, having in fact only 38 or 35 votes against the nominee, force a cloture vote.  Of course they're using the filibuster against Kagan.  They've made it a 60 vote Senate, and they aren't going to make an exception for Supreme Court nominees.

Dogs, Not Barking: Special Crazy Edition

A recurring item about things which are not in the news -- which is itself newsworthy.  This time, special edition: The Crazy.  Since I'm identifying three things that crazies might be have been doing that apparently aren't happening, one might conclude that the Crazy is losing steam.  Or perhaps reporters just need to dig more?  Hmmmm....

1.  Elena Kagan.  Remember her?  Supreme Court nominee?  Likes softball?  We've had a huge paper dump, but so far, I'm not hearing much from the crazy right (or even, for that matter, from the sane right).  Where are the massively out-of-context quotations?  The illogically constructed extreme positions attributed to her?  Where are the accusations of sexism or racism?  I checked conservative expert reporter Dave Weigel's blog, and he's just written one post on her in the last month, and that one was pretty tame -- that Republicans are apt to press her for her position on guns.  Nothing seemed to come up in a quick general search, either.  Most promising: she apparently was involved in some of the work surrounding Ruby Ridge.  I can't quite believe any Senator will run with that, but I can imagine talk show hosts demanding that GOP Senators bring it up, no?

2.  OK, we know all about Rand Paul.  We're learning all about Sharron Angle.  But aren't there dozens of Rand Pauls and Sharron Angles being nominated for the U.S. House of Representatives?  So far, I haven't heard about it.  I suspect this one, however, is lack of reporting, not lack of an actual story -- but I don't know! 

3.  (Or maybe 2b): Impeachment.  Still no resolution offered.  But...are there House candidates who support impeaching the president?  I haven't heard it yet (outside of one fringy Democrat in Texas -- don't forget, the crazy isn't restricted to Republicans or conservatives). Given that a fairly good-sized chunk of the GOP primary electorate supports impeachment, I would have thought that some candidate would run on it, but apparently not.  As far as I know!

4.  As always, haven't heard anything about the implementation of the super-secret plot of Obama and the Democrats to reimpose the Fairness Doctrine.  But it's good to see that the Heritage Foundation plans as of this week to "always remain vigilant" about it.

Read Stuff, You Should

I'm still thinking the same thing about Ross Douthat: excellent blogger, bit of a dud as a columnist.  Ezra Klein liked yesterday's Douthat column a lot more than I did...he thought that it was fine except for some tricky ducking of issues at the end, while I thought it played partisan and ideological games throughout.  Douthat has the panic of '08 as a result of public and private interests "too intertwined," but doesn't even mention the possibility that underregulation was at fault.  Also: for Douthat, Robert Rubin is apparently the only public official identified with the causes of the crash...but if I recall correctly, Rubin had actually been out of office for almost a decade -- and to say that the American reaction was to install "more of the same" with Geithner and Summers, as if that intervening decade never happened.  To me, that's just cheap rhetoric.  But then his similarly themed blog post I found to be quite a bit more interesting and straightforward.  Great blogger.  Really weak columnist...so far, at least.

OK, on to the good stuff:

1. Kagan links: Jamelle Bouie on careerism and gender; Noah Millman makes the best case I've seen against cautious careerism.

2.  Health care: Sam Stein goes behind the scenes about how it passed, with an emphasis on White House involvement.  And the future of health care? Since I've argued that it won't be repealed, I really have to link to this research that might give reform opponents some hope, although I don't think it predicts repeal even in the case of a GOP landslide.

3.  Marc Ambinder on detention under Obama.

4.  On the other hand, sometimes elections mean fairly dramatic change.  Harold Pollack assesses Obama's drug plan.

5.  Don't miss Eric Alterman and Garry Wills on the bomb and democracy (I haven't read the book yet, but it's on my list).  Or Andrew Sprung reading Gates.

6.  Amanda Marcotte is smart about what is and isn't America (you all know I'm from Phoenix, right? So yeah, I'm gonna like that piece), and also takes aim at the Sage of Wasilla.

7. I don't mind a little hypocrisy, but Stan Collender sure does.

8. And closing with a baseball link: if you miss Joe Sheehan on a daily basis as much as I do, you might want to know about this.

Ambition

Hacker: The greasy pole is important. I have to climb it.
Humphrey: Why?
Hacker: Because it's there.

Yes, Minister: "The Greasy Pole"

I'm convinced that we don't have a good handle on ambition.  I'll try to write more about that later...among other things, I think it's safe to say that we don't like ambition, and that we're suspicious of the ambitious.  At least, if we think of them that way (Lincoln and Washington were both highly ambitious, but it's not exactly the trait that we celebrate).

And yet, we do not have a system in which offices are dispensed by lottery.  In fact, we have a system based on ambition.  Therefore, the very least I think we can say about ambition is that whatever one might think about a system that rewards and requires ambition, it makes no sense at all to judge individuals who succeed within that system on how ambitious they are.  They are all ambitious.  You don't get to be a serious candidate for President of the United States of America without being ambitious.  And, for the most part, you don't get to be a Justice on the Supreme Court of the United States of America without being ambitious.  That's not an absolute -- as far as I know, lightning did strike in the case of David Souter -- but for the rest of them?  Absolutely.  Not just Kagan: Sotomayor, Roberts, Alito...they all organized their lives in such a way that they could be serious candidates for the high court.  Even someone such as Robert Bork did that; he badly, by all accounts, wanted to be on the court -- he just misjudged the rules and norms of how to get there.

I'm pretty confident that this suspicion of ambition is what's at the core of the unease with Kagan expressed by David Brooks and Andrew Sullivan (see also an interesting reaction from Ta-Nehisi Coates).  My advice for them is simple: get over it.  Of course SCOTUS candidates are going to be ambitious and organize their lives around the pursuit of a seat on the court, just as presidential candidates, or Speakers of the House, are going to do the same.   It's not just an effect of the post-Bork rules, either; change the process, either by reforming the rules or otherwise, and you'll get highly ambitious nominees who play by those rules.  Make strong public position-taking important, and then you'll get people like Kagan and Roberts who publish lots of provocative arguments.  Same ambition, just tailored for whatever the norms demand.  Of course, presidents used to put actual politicians, people who had run for office, onto the Court, but I think we can safely assume that Taft and Warren were just as insanely ambitious as Kagan and Roberts.

So:

1.  Regardless of the way we choose Justices or any other top position, we're going to get candidates who are highly ambitious; there's just no way to avoid that.

2.  Therefore, it is foolish to count it against any candidate that she appears to be ambitious, or that she does the sorts of things that people who want to reach the Court (or other high office) organize their lives to do.

3.  It is possible, however, to think of reforms that would change the ways that ambition is expressed.  If you want more explicit statements of political positions, make that a requirement.  Just don't mistake any of that for purging ambition from the system, or for opening the gates to less ambitious people.

(By the way: I'm thinking that it's possible that not everyone has watched Yes, Minister.  If yolu're at all interested in governing, this is completely unacceptable.  Highest recommendation; a great, great series). 

Persuading Kennedy

A bit of a speculative SCOTUS post to start the day...

I agree with Scott Lemieux, Matt Yglesias, and others that people make far too much of the idea that the primary job for a liberal Supreme Court nominee is to entice Justice Kennedy over to the liberal side. 

Not just because the Supreme Court doesn't actually work that way, and because it miscasts Kennedy as a passive weakling.  Mainly, because Elena Kagan is, if all goes well, going to be on the court for decades.  Anthony Kennedy, on the other hand, isn't.

Which brings me to my point, which is that it's possible that thinking about persuasion in terms of individual cases is all wrong.  The real thing for which Kagan -- and Obama -- need to persuade Kennedy to do is to consider retiring with a Democrat in the White House.  For that, it really might pay to avoid a "a full-throated counterweight to the court’s conservative leader, Justice Antonin Scalia."  Kennedy will turn 74 this summer.  I've always said that it's a mug's game to make predictions about politicians and retirements, and that must be even more true about Justices on the Supreme Court.  I would say, however, that if he considers retiring over the next several years, and if he cares about what happens to the Court after he's gone...well, if those things are true, then it's pretty easy to imagine the incentives involved and how Obama's nominees change those incentives.  We can assume that Kennedy would prefer to be replaced by someone similar to himself, and then guess at where he perceives the next Democratic and the next Republican appointments would be.  Presumably, given his voting pattern, he'd prefer to be replaced by a Republican appointee -- but relatively moderate picks by Democrats might close that gap somewhat (as might extremist rhetoric from Republican candidates).  If he does reach a point at which he'd prefer retirement, but Obama or another Democrat is president, it may be that if he perceives a relatively smaller gap between himself and a likely Democratic nominee that it might make a difference between him pulling the trigger or waiting another four (or more) years.  Perhaps if it's going to be Brennan or Marshall, he stays; if it's going to be Breyer, well, that makes it a bit easier to walk.  Especially if Sarah Palin, Rush Limbaugh, and Glenn Beck are the arbiters of Constitutional Law within the Republican Party.

Is that worth choosing a moderate liberal over a "full-throated" liberal?  I have no idea; but then again, I don't really think there's any good way to know which one Kagan is going to turn out to be, assuming she is confirmed.  As I said, just a bit of speculation to add to the mix.

Kagan Is Being Filibustered

This is ridiculous.  Republicans are claiming that they haven't decided whether to filibuster Elena Kagan's nomination to the Supreme Court, and reporters are playing along (via Sargent).

I've been over this before...

Hey, reporters!  Do you really think there's any chance that Kagan will be confirmed by a 53-47 vote?  If 47 Senators oppose her, is there any realistic possibility that they will vote yes on cloture and no on confirmation?  In fact, is it very likely that she could even be confirmed 59-41?  If not, then it is a filibuster.  It may not be -- by all accounts, it probably won't be -- a successful filibuster.  It may turn out that, not having the votes, Republicans will not force a cloture vote.  But it's a filibuster, all right. 

Remember, without a filibuster, a nomination only needs a simple majority (of those voting) to be confirmed.  Any talk of 60 votes is filibuster talk.  That's how filibusters are conducted now...not by reading recipes on the floor of the Senate, but by insisting -- by acting as if -- 60 votes are required.  They are not, except in cases of filibuster.  Such as the current one, against the nomination of Elena Kagan.

Kagan is Not Harriet Miers

Glenn Greenwald, who opposes Elena Kagan's selection, complains about Democrats who line up to support her, working from a Matt Yglesias tweet (and see also Ygesias today).  Yglesias said:

Argument will be simple: Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama

To which Greenwald replies:

Just think about what that means.  If the choice is Kagan, you'll have huge numbers of Democrats and progressives running around saying, in essence:  "I have no idea what Kagan thinks or believes about virtually anything, and it's quite possible she'll move the Court to the Right, but I support her nomination and think Obama made a great choice."  In other words, according to Chemerinksy and Yglesias, progressives will view Obama's choice as a good one by virtue of the fact that it's Obama choice.  Isn't that a pure embodiment of mindless tribalism and authoritarianism?  Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush's selection of Harriet Miers to what progressives are almost certain to do with Obama's selection of someone who is, at best, an absolute blank slate. 

This is nonsense.

Elena Kagan is not, of course, a blank slate.  She's nothing like Harriet Miers.  Miers was, in political terms, a pure Bush creation; she had no political experience other than her work for George W. Bush.  By contrast, Kagan worked (briefly) for the Senate Judiciary Committee; for the Clinton White House; and, of course, for the Obama White House (see here for details).  In other words, Kagan has behaved exactly as one would expect a committed liberal to behave.  That's not a blank slate; that's action which reveals her politics.  Liberals who support her may not have extensive writings on which to judge her, but they do have her political actions.  Conservatives, with Miers, had no similar record to consider. 

(Update: See Jonathan Chait on the same point today).

Next is the trust question.  Conservatives in the case of Harriet Miers really did have to rely on George W. Bush's judgment.  Liberals, with Kagan, have a far wider group of endorsements to use to judge her as a nominee: not just Obama, but also Bill Clinton, Joe Biden, and the people who worked with her when she worked for those pols.  That's a far different situation.  Any one pol might make an idiosyncratic choice, but Kagan won the support not of one president, but of the liberal establishment.

And, on that trust question, there's a reason that conservatives didn't trust George W. Bush: he had a record of misleading them.  By the time Miers was nominated, Bush had already misled conservatives in Congress about the cost of his Medicare expansion, and had already been proven wrong about so-called weapons of mass destruction in Iraq.  These were not just cases in which conservatives disagreed with Bush (in fact, many of them were enthusiastic supporters of war in Iraq); they were cases in which the Bush administration turned out to be saying things that were not true.  I don't think any similar examples exist for Barack Obama to date.  It is true that some liberals have opposed some of his policy choices, and it is true that some liberals have a deep mistrust of Obama's Chief of Staff, but I don't think there's anything in particular that gives liberals good reason to think that the president might be trying to put one over on them.   It's probably worth mentioning as well that George W. Bush was neither a lawyer nor an apparent expert in constitutional issues, whereas those who have hired Kagan -- Biden, Clinton, and Obama -- are all lawyers, with strong qualifications for being able to judge legal arguments and to assess a nominee. 

(I should add that opposition among conservatives to Miers wasn't just on the basis that she was ideologically unreliable; conservatives also believed she was not well qualified for the position.  I don't think that was a controlling factor, but it may well have been a contributing one.  Presumably, no one has similar qualms about Kagan).

The bottom line here is that Greenwald is conflating two very different types of party loyalty.  It's one thing for a president to nominate someone unknown to the wider political world and asking everyone to simply trust him.  It's a completely different phenomenon for people to support a nominee with Kagan's background and endorsements, and to consider each of those endorsements evidence on her behalf.  Yes, of course, she could have been fooling everyone...but that's just as true, it seems to me, of speeches, law review articles, and even lower court opinions.  You don't get to know what a nominee "really" thinks.  Her writings are only hints, just as the support of those who she's worked with, and her behavior, are only hints. 

I'll add some qualifiers here.  Obviously, there's a big difference between supporting a nominee and believing she was the best possible nominee.  As I've said, I think that much of the parsing in these situations amounts to people kidding themselves over tea leaves, but then again Supreme Court nominations are legitimately thought of as very important, and it's understandable that people will speculate about which potential nominee is the best.  Second, it is of course a plausible position to simply be far to the left of where Obama, Clinton, and Biden are on constitutional issues.  Plausible, but lonely -- one who is in that position should realize that his or her ideal nominee would have little chance of being selected or confirmed.

But to say that the Kagan nomination is in any way similar to the Harriet Miers nomination is garbage, and to say that liberals who take the endorsements of the Barack Obama, Bill Clinton, Joe Biden, and other party leaders as strong evidence on her behalf are the "pure embodiment of mindless tribalism and authoritarianism" is garbage, too.

(Updated to add Chait link above).

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.