posted by Brandon Bartels
In the aftermath of Justice Elena Kagan’s successful confirmation (by a 63-37 vote), have we learned anything new about the Supreme Court appointment process? I don’t think so. The process continues to be highly political, with a nominee’s ideological views and “judicial philosophy” taking center stage. Kagan’s qualifications — or lack thereof, according to some — became an issue. While everyone agrees that she is very intelligent, her lack of prior judicial experience was a minor problem for her nomination, leading even moderate Republican Senator Scott Brown to vote against her. Kagan will be the first justice since Justice Rehnquist (when he became Associate Justice in 1972) not to have had prior experience as a judge.
An interesting counterfactual: Let’s say Kagan were nominated to replace one of the conservative justices on the Court instead of Justice Stevens. In such a scenario, Kagan would have shifted the ideological balance of power to the left, thus making it a more significant, critical nomination. Would Republicans have filibustered her nomination under those conditions? It will be very interesting to see how such a confirmation process unfolds in the future if such conditions are present. With conservative justices hesitant to retire under an Obama administration, it would take death or a serious illness (that would force retirement) for Obama to change the ideological balance of the Court (sorry to sound morbid). Under these conditions, Obama might choose someone he knows could withstand rigorous Senate scrutiny given the high-stakes nature of the appointment. He would also have to consider the partisan and ideological makeup of the Senate.
The two most recent instances where a justice retired while a president of opposite ideological stripes held office were Justices Brennan and Marshall. Both retired for health reasons; President George H.W. Bush appointed their replacements. Marshall was replaced by Thomas, and we all know how that confirmation process turned out; the vote was 52-48. Brennan was replaced by Souter, though that process was not contentious. The vote was 90-9.
If President Obama does happen to get the opportunity to change the ideological balance of the Court (i.e., replace a conservative justice with a more liberal one), we can surely count on a highly dramatic, contentious appointment process far eclipsing the Kagan appointment process.