Why Elena Kagan's the Best Court Candidate

Elena Kagan headshot, Harvard University law school dean, Harvard University photo on texture,
AP
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on April 27, 2010.

In my February post on the nomination process, I anticipated that the administration would treat Solicitor General Elena Kagan and appellate judges Diane Wood and Merrick Garland as the leading candidates to replace Justice Stevens, and that it would ultimately select Kagan.

My reasons focused on positives about General Kagan as a nominee-including the great respect for her intellect, her well-regarded ability to bring left and right together, her experience, her relative youth, and that she would be a second female nominee for the president-but I also thought it was significant that among the three leading candidates she seemed to be the best political fit. Judge Wood, I thought, would generate genuine opposition (which would be potentially significant for the mid-term elections), while Judge Garland was sufficiently to the ideological center that he would be an essentially "safe" choice that the administration would not make absent a collapse in its political fortunes.

When I wrote that post, the administration's political fortunes differed from present circumstances in at least two ways. First, uncertainty about health care then cast a dark cloud over any prospect that the White House would invest itself heavily in a nomination, as opposed to other priorities. The administration has more capital to expend now, if it wants. Second, it has had the opportunity to gauge Senate Republicans' reaction to the "short list" of names. That reaction has been distinctly muted.

Given the changed circumstances, I'm now ready to update my assessment and conclude that in light of the changed political climate I think that the president will nominate . . . Elena Kagan. I just now think that politics will have less to do with the choice.

It seems clear to me that none of the three nominees-including even Diane Wood-will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections.

Thus, no Republican Senator has been materially critical of either Kagan or Garland. To the contrary, Republicans have been sending signals that neither would generate an enormous fight. I think that she would receive only 65 votes and he would receive ten to 20 more, but both would be confirmed without a significant disruption in the Senate's business.

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood's abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured. Moreover, not only is there no filibuster on the horizon, but her nomination also does not seem like it would require an awesome investment of political capital that the Administration would prefer to expend somewhere else. To the extent that a fight occurred, the White House is no longer so consumed by health care, and it could engage the debate heavily without significantly sacrificing other priorities.

The nomination of Wood does present distinct issues because abortion-which she alone of the three has been called upon to address-raises the prospect that the nomination could be used by conservatives as a rallying cry for the 2010 midterm elections, in which Democrats face the prospect of losing control of the House and thus significantly undercutting their legislative agenda. More broadly, a fight over abortion would potentially reframe the debate this summer from the economic issues on which the administration seems focused-including with respect to the Supreme Court-to social and cultural issues, which is a direction in which they likely do not want to go.



Nonetheless, my sense is that the administration has made the judgment that although abortion is a uniquely polarizing issue, by November of this year a Wood nomination would have largely faded into the political background, just as the confirmation of Sonia Sotomayor did a year before. Abortion thus remains an issue, but is not dispositive.

It is equally true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists. And the White House is well aware that Judge Wood is regarded by progressive groups as the nominee who has the greatest prospect of serving as a genuine intellectual leader for the left. (There is, however, absolutely no prospect at all of organized opposition to any of the three developing from the left; there will be no Democratic reprise of Harriet Miers.) So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president; those political factors seem essentially in equipoise.

The upshot is that the administration seems focused on making the choice between these three candidates based not on the political calculus in the Senate (including with respect to its legislative priorities) or in the November elections, but instead based on which nominee best embodies the president's vision of a Supreme Court Justice and will have both an immediate and lasting impact on the Court, as well as which one sends the best message to the country about the president's priorities.