Supreme Court Fever
posted by Gerard Magliocca
Yesterday, Tom Goldstein kicked off this year’s speculation about who the next Justice will be (assuming that Justice Stevens retires, which seems highly likely). His view is that Solicitor General Elena Kagan will get the nod. I think this is probably wrong.
With respect to this pick (as with every Court nomination), the President will need to make a political calculation. In this case, part of the choice comes down to “Does he want a smooth confirmation?” or “Does he want to pick a fight with Republicans and excite his base?” The selection of Kagan would not fulfill the latter goal, as far as I can see, thus her selection makes sense only if the President wants to calm the waters. And that depends to a large extent on what happens with health care, which is too close to call. If the health care bill fails, then the President will need something for his base and Kagan would probably be out of luck. If health care passes, though, then her chances go up.
Even assuming that Kagan’s nomination makes political sense, I think there is a valid case to make against her on the merits. First, a sitting SG that reaches the Court must recuse herself in many cases during the first year or two of her tenure because of her involvement in the certiorari petitions. Thus, there may be a significant short-term cost to picking her that would not be true for a sitting judge or an elected official.
Second, I’m not clear that Kagan has been a good Solicitor General. You could make a decent case that her handling of Citizens United, from the point of view of those who don’t like the decision, was slapdash both in the initial argument and in the way the issues were framed on reargument. As the outcome of that case is dear to progressives, I wonder how they will view her lawyering skills upon closer scrutiny. (To be fair, you could say that no matter what she did the outcome would have been the same, but I’m not sure about that.)