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.
Regarding the latter, none of the three leading candidates is truly a perfect fit. The President has made a point of focusing on the Citizens United decision upholding corporations' rights to participate in election spending, and Democratic Senators have begun articulating a populist critique of the Court's conservative rulings that they regard as unduly favorable to business. Elena Kagan argued Citizens United for the government, defending the campaign finance statute. But beyond that, none of the three has a populist record, and none of them has the kind of hard-scrabble back story that buoyed the nomination of Sonia Sotomayor. Probably only Elizabeth Warren-who is not being considered-would beautifully fit the message that Democrats are trying to send to the country about the Court.
The related suggestions that the president appoint a non-judge, which have been growing in prominence, favor Kagan. All three served in significant roles in the Department of Justice. But the general perception that Kagan was otherwise a law professor and dean-jobs that aren't significantly different from a judgeship-is not correct. She held two significant positions in the White House-deputy counsel and deputy domestic policy advisor-that directly involved her in significant policy- and legislation-related decisions.
Previously, she had some exposure on the Hill as an advisor to Senator Biden during the Ginsburg confirmation hearings.
Turning to other factors, nominating a woman is not an imperative, but it certainly is a plus. Youth also has its virtues, in extending the length of the president's legacy, although it too is not controlling. But of the factors I've mentioned so far-experience beyond the judiciary, gender, age, and (most obliquely) Citizens United-Kagan comes out on top. The fact that the difference in age between General Kagan and Judge Wood is a decade probably is material.
Intellectually, all three are regarded as exceptionally smart, and each is plainly up to the job.
As for the substance of the views of the three, I'm sure they differ, but I don't think it's possibly to really identify with confidence in what ways. At bottom, as I explained in my profile of Judge Garland yesterday, I do think that there is truth to the conventional wisdom that Garland is more conservative than Kagan, who is in turn more conservative than Wood. But the differences are overblown.
Each of the three has a different background, and each has taken positions that respond to different circumstances. Both Garland and Wood are judges, for example, but they have decided very different kinds of cases when it comes to hot-button issues: Only Garland's docket includes decisions relating to the war on terrorism, while only Wood's includes cases involving abortion and religion.
We can infer a little about the three from their professional choices about their respective career paths, which do support the conventional wisdom that they are arrayed left to right: Wood, Kagan, Garland. But the distance between the three seems not to be dramatic. Garland has spent most of his professional life as a public servant, including (like Sonia Sotomayor) time as a prosecutor. He is in that respect a model judge, truly balanced.
Wood and Kagan started as academics; Wood transitioned to a judgeship under President Clinton, and Kagan would have done the same thing had her D.C. Circuit nomination not been blocked in the Senate. Wood has a track record as a result. They are substantially more likely, I think, to have a progressive vision of the law-Wood more so than Kagan. Although Kagan has been more careful than forceful on ideological questions, when her institutional responsibilities called on her to take a position-such as on the Solomon Amendment and discrimination against homosexuals-it is noteworthy that she was decisive.
Although Wood has confronted several abortion-related cases, the contention that she is rabidly pro-choice seems to me simply wrong: She has made clear that she would uphold significant abortion restrictions. I obviously don't know, but I think it's quite likely that Garland would have taken the same position on the "partial-birth abortion" statute as Wood-that it was constitutional only if it had an exception for the health of the mother, and that it raised significant vagueness concerns. That was the position that all four justices on the left of the Supreme Court took, along with Sandra Day O'Connor.
The same goes for Elena Kagan. She hasn't taken a public position on choice. But given the limited positions she has taken on social issues, there is no reason to believe that she would take a different position than the core of the left on the Court.
On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well. Merrick Garland almost certainly has the greatest level of personal respect among the existing Justices, and as a consequence I believe (as I said yesterday) that he would have the most immediate impact on the Court. But part of that relates to his own centrism, and there is little reason to believe that he would emerge as the intellectual leader of the left.
Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.
All of the points above explain why the choice between the three front-runners is a difficult one, particularly when the additional factor of politics does not seem likely to play a decisive role. It is obviously unclear who the president will choose, but on the merits, I think it is most likely that he will turn to Elena Kagan.
By Tom Goldstein:
Reprinted with permission from The New Republic.