Tuesday, June 29, 2010

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. 


  1. Filibustering a Supreme Court nominee is obviously quite different from filibustering a controversial health care bill. While I have no data on hand to back this up, my impression is that Americans definitely feel presidents get to pick SCOTUS justices, and Congress just gets an up or down vote (and should also give a good amount of deference to the prez).

    If a majority of senators wanted to vote for a nominee, but the party opposed to the president chose to filibuster said vote, I think that would be extraordinarily risky in political terms. If the first nominee failed, a smart president would simply nominate a similar nominee and force the other party to filibuster again--quickly they would be perceived as obstructionist and trying to force the president to make a certain decision, which I think would be highly unpopular, particularly among more centrist Americans.

    Obviously this is somewhat tangential to your main point (with which I agree), but I'm not sure that the new "full 60 vote Senate" (assuming it lasts) will be in evidence all that much with future SCOTUS nominees. Those that would completely flip the ideological composition of the court are a different matter, but the consequences of that would likely go beyond filibuster into an all-out, nationwide semi-catastrophe.

  2. Supreme Court confirmation hearings are less about selecting justices than they are about positioning for the next election--particularly the next presidential election. The decision to go with a "stealth" candidate should be seen in that light. Maybe Obama put Kagan forward now because she's less likely to rile up the Republican base in the mid-terms (at minimal cost to the enthusiasm of the Democratic base) and to mobilize opposition among independents to his reelection than someone, like Wood, who'd have to defend unpopular judicial decisions about social issues.

  3. Unless the nominee can't get an ABA rating, the senate should confirm all nominees for judgeships.

  4. Anon,

    I really don't agree. There's nothing in the constitution to imply that the Senate has such a limited power.


    I think you may well be exactly correct.


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