Courting Kennedy

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy -- the Supreme Court's lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy's opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O'Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade -- even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O'Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy's vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against "partial-birth" abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy's own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy's opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can "flip" Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the "best argument" combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that "conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room." Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking "Who can sway Kennedy?" is no way to pick Justice Stevens' replacement.

Are Harvard Law School Hiring Statistics Relevant to Elena Kagan's Nomination?

Last week, Salon.com ran a story regarding the low number of persons of color and women hired by Harvard Law School during Elena Kagan's tenure as Dean. Despite a surge in new hiring by the law school, only a few women and one person of color were hired as full-time faculty during Kagan's deanship. This essay argues that liberals and progressives should consider these statistics relevant to their analysis of Kagan's nomination.

Liberals and Progressives Have Long Considered Racial Diversity Valuable to Higher Education
Liberals and progressives have a long history of advocating racial diversity as an essential dimension of higher education.  The Supreme Court first recognized diversity in higher education as a "compelling" state interest in the 1978 ruling Regents of the University of California v. Bakke.  25 years later, it affirmed the importance of this interest in the ruling Grutter v. Bolinger, which involved a challenge to an affirmative action policy at the University of Michigan Law School. The Court embraced diversity as a necessary part of the educational process, and liberals offered tremendous praise for the ruling.

It is unclear whether the racial and sex statistics at Harvard Law School reflect a lack of commitment to diversity by Kagan.  If they do, then this should absolutely concern liberals and progressives. Because Kagan has never written about affirmative action or racial diversity in an extended fashion, the only way that the public can evaluate her commitment to diversity is to place this issue on the agenda during her confirmation hearings.

Liberals and Progressives Are Suspicious of Hiring Practices That Have a Disparate Impact Against Women and Persons of Color
In addition to praising diversity, liberals and progressives are suspicious of hiring practices that disparately affect women and persons of color. In the 1971 decision Griggs v. Duke Power Co., the Supreme Court held that federal employment discrimination law prohibited not only explicit policies that discriminate on the basis of race or sex, but also facially neutral practices that have a clear discriminatory effect. Even if the policies pursue a legitimate business purpose, Court doctrine allows plaintiffs to demonstrate the availability of a less discriminatory method of achieving the valid goal.

Decisions by the Rehnquist Court effectively nullified the impact standard, but in 1991, Congress made that rule an explicit part of federal law by amending the civil rights legislation. Today, the impact doctrine remains a part of antidiscrimination law -- although it is often extremely difficult to satisfy.

Liberals and progressives have fought to retain the impact standard.  In fact, they recently defended the standard during the confirmation hearings of Justice Sonia Sotomayor.

In Ricci v. DeStefano, Sotomayor was part of a 3-judge panel of the Second Circuit that upheld a decision by the New Haven fire department to withdraw a test used to allocate promotions. The test allocated all but one of the promotions to white employees. Experts testified that other testing methods could have produced a less discriminatory result.

The Second Circuit held that New Haven could withdraw the test because it was trying to avoid liability imposed by the disparate impact standard which liberals have fought to retain in federal antidiscrimination law. Conservatives made Ricci a centerpiece of Sotomayor's confirmation hearings, arguing that the ruling showed that she was biased against white plaintiffs.  Although the Supreme Court reversed the Second Circuit ruling on predictable 5-4 ideological grounds, liberals and progressives defended the Second Circuit ruling as a reasonable interpretation of Court doctrine.

The same factors that caused liberals and progressives to defend Sotomayor's ruling in Ricci, should lead them to question Harvard's hiring statistics.  Even if no particular plaintiff has a discrimination claim against Harvard Law School, statistical patterns of discrimination are meaningful to liberal and progressive politics. Accordingly, it is not unconscionable for liberals and progressives to ask Kagan about her commitment to diversity and to the enforcement of antidiscrimination law. In fact, such a line of inquiry is consistent with liberal and progressive politics and legal theory.

Excuses
Well meaning liberals have attempted to dismiss Harvard's hiring statistics by arguing that other schools have similar numbers.  This is a really bad argument. The fact that other schools have questionable records on race and sex does not excuse Harvard (or Kagan).

Others have pointed out that deans do not dictate hiring; thus, holding Kagan responsible is flawed. I agree that deans do not typically dictate hiring, but they influence the process. Indeed, many of Kagan's supporters praise her for helping to augment ideological diversity on the faculty by extending offers to conservative scholars. If Kagan can take credit for ideological diversity at Harvard, then she can also take blame for the lack of racial and sexual diversity.

Final Point: Consistency
CNN commentator Roland Martin argues that if liberals and progressives want to remain consistent, they should voice concerns regarding Harvard's hiring statistics. I agree.

During the confirmation process for Justice Samuel Alito, several Democrats questioned Alito about his membership in Concerned Alumni of Princeton, a group that opposed the school's efforts to increase enrollment of women and persons of color. Senator Edward Kennedy sought records of the organization, hoping to find information that would link Alito to race and sex discrimination. This effort proved fruitless.

If Democrats believed that Alito's membership in Concerned Alumni of Princeton could shed light on his view of race and sex discrimination, then hiring statistics during Kagan's tenure as Dean of Harvard are even more relevant. Kagan had much more influence on the hiring process at Harvard than Alito had on the admissions process at Princeton.

Kagan = Obama

I find it hard to disagree with Glenn Greenwald's analysis regarding the choice of Elena Kagan to replace Justice Stevens. Regardless of whether one's position on the appropriateness of the choice, as Greenwald argues, Kagan and President Obama have a lot in common that satisfies professional Democratic politicians. Here is a core passage from Greenwald's article:

The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

 Great points.

Kagan and Same-Sex Marriage: Unclear, Like Most Issues

William Jacobson, the author of the blog Legal Insurrection, makes a interesting assertion in a recent post.  Jacobson argues that Elena Kagan "clearly believes [same-sex marriage] is a matter for the political process, not a constitutional right." 

Jacobson bases this assertion on a questionnaire that Kagan completed in connection with her confirmation as Solicitor General. One of the questions asked Kagan whether she believed that there was a federal constitutional right to same-sex marriage. Kagan unequivocally stated that "[t]here is no federal constitutional right to same-sex marriage."

Jacobson is probably reading Kagan's answer too broadly.  Kagan could simply mean that no federal right exists because the Supreme Court has not yet decided this issue.  This, however, would not preclude her from arguing that the Constitution confers such a right, when and if the issue came before her as a justice. 

Ann Althouse agrees and has written more on the subject: Althouse: Elena Kagan said "There is no federal constitutional right to same-sex marriage," but does that mean that, as a Supreme Court Justice, she won't find that right?

Obama Administration Wants to Limit Miranda - But Can It?

The New York Times (also - the Washington Post) reports that Attorney General Eric Holder will seek a new law permitting the government to decline from Mirandizing terrorism suspects. Specifically, the New York Times says that:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.

Conservatives have blasted interrogators for informing terrorism suspects of their constitutional right not to speak to law enforcement officers and to secure legal counsel.. Conservatives, however, have a long history opposing Miranda.

Miranda Is a Constitutional Requirement
In 2000, the Supreme Court rejected the Justice Department's argument that the Miranda requirement was not a constitutional rule. Only two justices dissented.  Former Chief Justice Rehnquist -- a staunch conservative -- authored the ruling.  Given the Court's ruling, it is unclear how Congress can alter and set limits to Miranda by statute. Civil libertarians quoted by the New York Times agree with this assertion:

Still, Anthony D. Romero, executive director of the American Civil Liberties Union, said Congress had no authority to “chip away” at the Miranda ruling because it was based in the Constitution. He predicted that any effort to carve a broader exception would be vigorously contested.

“The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing,” he said. And Virginia E. Sloan, president of the bipartisan Constitution Project, said the existing public safety exception to Miranda seemed to be working, so there was no need to erode constitutional protections in ways that could later be expanded to other kinds of criminal suspects.

“It makes good political theater,” she said, “but we need to have a clear problem that we are addressing and a clear justification for any change. I haven’t seen that yet.”

The Court could, however, validate legislative guidelines if Congress acts upon Holder's recommendation.

Lena Horne: Another Legend Dies

The great Lena Horne died yesterday.  She was 92. 

In addition to being an adored performer, Horne was an activist, and she helped to reshape the image of blacks in the entertainment media. She will be deeply missed.

The Washington Post has published a detailed obituary: Lena Horne dies at 92; dynamic singer and activist broke barriers in Hollywood.

NBC: Obama to Pick Kagan Monday

NBC reports that President Obama will pick Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens.

My Take
Well, I am not surprised that Obama shied away from picking a person with more solid liberal/progressive credentials. Now remind me again why liberals were euphoric over his election?