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Update: President Obama did indeed nominate Elena Kagan to the Supreme Court this morning.

Obama Expected to Nominate Kagan to Supreme Court Today     Permalink

The rumor mill is abuzz with stories that President Obama is going to nominate Solicitor General and former Dean of the Harvard Law School Elena Kagan to the seat of retiring Justice John Paul Stevens, possibly even today. The NYT has a long biography of her today.

Given Obama's nature, what might his real criteria be for this appointment? The official story, as always, is to nominate the best person available. In a sense that is true--as long as you understand what "best" means. Here is a list of factors that surely will play a big role in his decision, not necessarily in this order, though.

  • Age. This is a lifetime appointment. The retiring justice is 90. If Obama appoints a 50-year-old, his influence might last 40 years. With a 60-year-old, it might be only 30 years. Obama can count. Also, and not always appreciated by everyone, when the chief justice is in the minority, the justice with the most seniority in the majority decides who gets to write the opinion, which is de facto, the law. That is a huge power. Given the ages of the justices (see table below) a young justice might become the most senior eventually whereas a 65-year-old never will.
  • Influencing Kennedy. Practically all controversial cases these days are decided by a 5-4 majority with Justice Kennedy being the swing vote. Justice Stevens was a master at convincing Kennedy to side with him, usually by allowing him to write the decision. The new justice won't have that power, so he or she has to be able to figure out what arguments Kennedy is likely to respond to. A bombastic and arrogant justice who is convinced he or she is right all the time will never be able to do that, so a conciliatory nature would be a plus.
  • Standing Up to Scalia. On the other hand, Obama certainly does not want the new justice to be a pushover for Antonin Scalia, the intellectual powerhouse on the conservative side. He or she has to be able to withstand the expected onslaught.
  • Helping in November. The Democrats face a tough election in November. Ideally, the nominee should help the Democrats with some important demographic group.
  • Charming the Senate. What with the banking bill still under consideration in the Senate, Obama does not want a big confirmation fight. He wants it obvious from the start that the Republicans will not be able to sustain a filibuster.

How does Kagan stack up on these criteria? At 50, she is about as young a nominee as is plausible without being attacked for lack of gravitas. Can she get Kennedy to side with here? We won't know until she tries, but she has a reputation as a conciliator, not an ideologue. How about standing up to Scalia? If she could stand up to the Harvard Law faculty, a barrel full of cantankerous egomaniacs if ever there was one, she won't wilt in front of Scalia. Does she bring in any demographic? The appointment of a second woman to the Supreme Court will surely cement Obama's popularity with women voters. Finally, Kagan was already confirmed by the Senate for her current job as Solicitor General. It is almost inconceivable that all 41 Republicans will filibuster her, given that seven of them (Coburn, Collins, Gregg, Hatch, Kyl, Lugar, and Snowe) have already voted for her to be the country's top litigator leading to her 61 to 31 confirmation. In short, she matches all the criteria very well.

Other candidates who are thought to be on the short list are circuit judges Diane Wood and Merrick Garland. Wood is 59 and Merrick is 57, not good as 50, clearly. In arguments with Scalia, neither brings the heft of the Dean of the Harvard Law School, although Wood has a reputation of being able to hold her own with the conservatives on the seventh circuit. Both were appointed to the federal bench by Bill Clinton in 1995, so quite a few sitting senators never voted for either one.

Obama is well known for his long-term thinking and not picking Garland may be part of it. Justice Ruth Ginsburg, the oldest member of the Court at 77, has had two serious bouts with cancer, including pancreatic cancer. About 95% of the people with pancreatic cancer are dead within 5 years. Ginsburg, a former ACLU lawyer, certainly wants her successor to be named by Obama, so it is very likely that she will retire next year. Obama knows this and also knows that he will have many fewer Democrats in the Senate next year, so saving a moderate like Garland for her replacement will make for a smaller confirmation battle next year.

If Kagan is nominated and confirmed, the Supreme Court will look like this. Justices in blue were appointed by Democratic Presidents and belong to the "liberal" wing of the Court. Justices in red were appointed by Republican Presidents and belong to the "conservative" wing of the Court. Justice Kennedy is a wing all by himself.

Justice Age Appointed by Yrs on Ct Law School Religion
Ruth Ginsburg 77 Clinton 16 Harvard+Columbia Jewish
Antonin Scalia 75 Reagan 23 Harvard Catholic
Anthony Kennedy 73 Reagan 22 Harvard Catholic
Stephen Breyer 71 Clinton 15 Harvard Jewish
Clarence Thomas 61 Bush 41 18 Yale Catholic
Samuel Alito 60 Bush 43 4 Yale Catholic
John Roberts 55 Bush 43 4 Harvard Catholic
Sonia Sotomayor 55 Obama <1 Yale Catholic
Elena Kagan? 50 Obama 0 Harvard Jewish

Clearly the Court is about as elite as you can get, with all members having Harvard, Yale or Columbia Law degrees (Ginsburg started at Harvard but transferred to Columbia when her husband got a job in New York city). Former senator Roman Hruska notwithstanding, a case can be made that the justices should be smart, but diversity this is not. Three things are historic however. First, three women on the Court would be a high-water mark. Never before have there been more than two. Second, three Jews on the Court would also be a first. Third, for the first time in history there would be no Protestants on the Court if Kagan is nominated and confirmed.

For its first 180 years, nearly all the justices were white male Protestants. There were only three Catholic justices prior to 1900 (Roger Taney, appointed in 1836, Edward White, appointed in 1894, and Joseph McKenna, appointed in 1898). Since 1900, there have been 10 more Catholics appointed to the Court. The first Jew was Louis Brandeis, appointed in 1916. Since then, six more have been appointed. For older, white, southern, Protestant men, who used to have a huge say in running the country, this development has to be disconcerting. If Obama feels that having no Protestants on the Court is a bridge too far, he could appoint Wood, who is Protestant (Garland, like Kagan, is Jewish). The first woman, Sandra Day O'Connor, was appointed in 1981. The Washington Post has a complete list of all Supreme Court justices going back to 1789. For more on their demographics, click here.

Bennett Booted from the Republican Ticket in Utah     Permalink

In an unprecedented development, on Saturday, three-term senator Robert Bennett (R-UT), failed to qualify for the Republican senatorial primary at the GOP convention. Everyone knows that the public is unhappy with incumbents, but that someone as conservative as Bennett was not far enough to the right would have been unthinkable a year ago. The filing deadline has past so he cannot run as an independent although he could mount a write-in campaign.

Make no mistake. Bennett didn't do anything wrong. He is a straight arrow who has never been involved in any kind of scandal and who did a good job of bringing home the bacon for Utah. Is he a real conservative? Well, the National Right to Life Center gave him a 100% rating as did the Chamber of Commerce; the American Conservative Union gave him an 84% rating. And the NRA endorsed him. For good measure, the ACLU and the AFSCME both gave him 0% rating. Apparently this is not good enough. People are just angry and Bennett is a long-time incumbent in what may well be an anti-incumbent year. On June 22, Utahns will go to the polls to choose between two Republicans even further to the right than Bennett. Given the nature of the Utah electorate, the winner of the Republican primary is a sure thing in the general election.

If anything, this victory for the tea partiers is more of a threat to Republicans than to Democrats. If Republicans have to cover their right flank in conventions and primaries, they are going to have to move to the right. In no-can-lose states like Utah, that won't hurt them, but in more moderate states, if the Republican is forced to move rightward, that could allow the Democrat to pick up more independents, certainly when there is no corresponding movement forcing Democrats to the left (although there are individual challenges from the left in Pennsylvania and Arkansas).

Sestak Leads in Pennsylvania     Permalink

Rep. Joe Sestak (D-PA) has taken the lead from Sen. Arlen Specter (D-PA) for the first time in their senatorial primary. According to a new Muhlenberg tracking poll Sestak currently leads 46% to 42%, erasing the double-digit lead Specter has held for months. When Specter jumped ship, he got the entire Democratic establishment, from Obama on down, to promise to campaign for him, which they have dutifully done. But secretly, probably many of them are hoping Sestak wins. Specter has voted the Democratic Party line in the Senate very faithfully since switching, but once the primary is over, he might well start bucking the Democrats, just as he often bucked the Republicans for years.

The nomination of Kagan puts Specter between a rock and a hard place. When she was up for confirmation as Solicitor General, he voted against her. No doubt reporters will ask him how he is going to vote on her now. None of the possible answers are any good for him. If he says he still opposes her, he will come off as a man of conviction but look like a principled Republican to the state's Democrats. If he is for her, he will look like an opportunistic flip flopper. If he refuses to answer, people will ask what he is hiding as he can't claim not to know anything about her since he is on the Judiciary Committee. It is a no-win situation for him and Sestak is currently blanketing the state with ads attacking Specter for jumping ship when it was clear he would lose the Republican nomination.

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