May 10, 2010

How good will Elena Kagan be at influencing the other Justices on the Suprme Court?

Today, I listened again to Elena Kagan’s oral argument in Citizens United v. FEC. I was just trying to get a feeling for the quality of her mind, and I was struck by how badly it went. I dug up a Salon article from a few weeks ago: "On the Supreme Court, not a lot of respect for Elena Kagan: The solicitor general's appearances before the high court have been marked by unusually brusque treatment" by James Doty. He looked to her 5 oral arguments as SG as evidence of "whether Kagan would be an effective liberal on the court," what sort of power she might have over Anthony Kennedy, whose vote tends to determine outcomes as he shifts from the Court's liberal 4 to the conservative 4, and whether she could provide an effective counterweight to the Court's strong conservatives.
When [Citizens United] was argued in September 2009, a modest defeat was still well within the realm of possibility, provided that Kagan could secure Kennedy’s vote. But she seemed oddly unconcerned with addressing his qualms. At one point, Kennedy asked Kagan to address a particular issue, which she had labeled "point two" in her opening remarks:
Kennedy: In the course of this argument, have you covered point two? ... I would like to know what it is.

Kagan: I very much appreciate that, Justice Kennedy. I think I did cover point two.
She quickly moved on. Four months later, Kennedy wrote a 5-4 opinion that handed Kagan and the U.S. government a sweeping defeat.

In subsequent arguments, Kagan has proven no more adept at assuaging Kennedy’s anxieties. In a recent case, Kennedy’s question about a particular piece of legal precedent was met with, "I -- I am not familiar with that case." In another argument, Kennedy suggested that Kagan was dodging the crux of his hypothetical: "No, no, no. That makes ... my hypo too easy for you." And in yet another case, Kagan was unable to muster a coherent response to Kennedy’s request for case law supporting the government’s position.
It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she'll be good at influencing Supreme Court Justices. That may be a poor inference. I think a law school dean is engaged in more of a social enterprise in bringing groups of people together. But the Justices — as the oral argument shows — deal in much more technical legal arguments. They may bend liberal or conservative, but the arguments need to be there. Justice Kennedy isn't there to be sweet-talked and smiled at. He's quite serious in mulling over the details. He's not movable because he's weak or wishy-washy. He'd be affronted, I would think, to know that anyone thought of him that way. I think he sees himself and wants to be seen as carefully thinking through the issues in a highly respectable judicial way.

64 comments:

Seven Machos said...

As a conservative, I think Kagan is an acceptable choice for the Supreme Court. Nothing she has done is grounds for any all-out assault.

From a political perspective, the calculus for conservatives is whether opposition and how much opposition will either rally their base or cut into Democratic support.

I don't think Kagan is going to be a lights-out justice on a par with Scalia. Obama is too much of a wuss to offer up someone like that. For example, Tribe. And, as I have said, I think virtually any human being is an improvement over Stevens.

avwh said...

It's too bad we can't get some sense of how her legal thinking and persuasive skills are viewed by the 8 SCOTUS Justices.

Doesn't sound like she wowed anyone other than maybe Obama in her appearances as Solicitor General (which are her ONLY legal court experiences).

The Drill SGT said...

She wil be less effective than either Stevens or Sotomayor

Palladian said...

Kagan really makes me appreciate Justice Sotomayor, who seems like a legal mind rather than a political operative.

But who knows? We'll see as more comes out about her.

info said...

In general, liberals can't think their way out of a wet paper bag...what they can do is demonstrate they "care" more than the other guy...that is all...

traditionalguy said...

Shhhh! Please keep this among ourselves until she is confirmed. Her legal skills have never been needed before. To bad she has none!

Greg said...

You under estimate the power of sweet tAlk
and smiles -- these guys clearly desparatetly want the esteem of others -- nothing else really explains their massive incapacity for intellectual consistency over time.

Seven Machos said...

I don't think Scalia particularly needs esteem. Stevens didn't need esteem. Nobody could write such tangential drivel over so many years if esteem was an issue.

I don't think esteem is a constant need if you have reached the level that these people have reached. That would be a real shock and disappointment for me.

New "Hussein" Ham said...

Since this crazed anti-abortion zealot will not actually be confirmed, she's not going to have any influence on other justices, except maybe by fetching them some coffee.

Should she be confirmed, women will be one step closer to having to resort to coat-hangers in dark alleyways.

Why Barack Obama would appoint someone standing just to the left of James Dobson is bewildering, I suspect, to many on the left. They have to feel thrown under the bus with this nomination.

I mean why not just nominate the fucking Pope for Christakes?

Women don't need any more enemies on the court. And it's clear that our Misogynist In Chief means to deny women control over their own bodies.

It's sickening that Barack Obama would do an end-run around Roe v. Wade with an appointment of this zealot who has never even been a judge before and will never have the opportunity to have an unintended pregnancy since, you know, she's a closeted lesbian who was outed by reporters accidentally.

edutcher said...

Ann's point, "It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she'll be good at influencing Supreme Court Justices. That may be a poor inference. I think a law school dean is engaged in more of a social enterprise in bringing groups of people together.", is the crux of the issue. She may, in fact, have been selected for the same reason The Zero has done a number of things - the fact that he really doesn't understand how things work outside academia.

More and more, she is beginning to sound like The Zero's Harriet Miers in terms of lack of experience, with an ideological chaser. If the Professor wants to call me on the carpet for the accuracy of that assessment, I'll operate on the assumption she's a lot more knowledgeable than I am on the subject, but I'm getting the feeling that, if the Assistant Democrats let her on the court, it will be one of their worst failings ever.

holdfast said...

You know, the Dean is sort of like the Community Organizer of a law school.

PatCA said...

Lets hope it doesn't turn into another Harriet Myers. We want the weakest of those we disagree with ideologically to be appointed, right?

traditionalguy said...

OK...I see Kagan as a helper of others. Who will she "help"? I see Sotomayor as her mentor. These two working together could be a stealth force of pro-life thinking among the abortion favoring jurisprudence of the past 37 years. It could pop up at any time.

Jeremy said...

Maybe Princess Sarah would be good for the Supreme Court:

The Princess: "Go back to what our founders and our founding documents meant -- they're quite clear -- that we would create law based on the God of the bible and the ten commandments."

Ahhh, yes. The Constitution...based on "the God of the bible and the ten commandments."

And to think 99% of the tea baggers here think this uneducated dolt should be president.

Jeremy said...

The whining and bitching here should be made into a sitcom.

"Tea Baggers on Parade"

Jeremy said...

Palladian - What would YOU possibly know about "law?

Stick to eating and really, really poor photography.

Jason (the commenter) said...

It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she'll be good at influencing Supreme Court Justices. That may be a poor inference.

Poor Althouse, doesn't she know reason isn't about abstract ideas but how it relates to people's ordinary lives?

HDHouse said...
This comment has been removed by the author.
HDHouse said...

Ann wrote "He'd be affronted, I would think, to know that anyone thought of him that way.."

As well most people would be but I see no evidence in what you wrote or now I have heard about her for a few days that indicates that is what "she would be thinking that of him" (to paraphrase).

Leaving personalities out of it, it may be that the position that the solicitor general was tasked to support wasn't supportable in any intellectually honest way. There isn't always an argument for something..well there is...but let's qualify it by saying there isn't always a GOOD argument for everything.

Kirby Olson said...

Is she full of herself as Sotomayor was? Any one-sentence self-appraisals along the lines, of "wise Latina"?

New "Hussein" Ham said...

"The whining and bitching here should be made into a sitcom."

So Jeremy, do you support ending abortion for women, as Kagan recommended to President Clinton?

Should women be forced back into dark alleyways to get their abortions, as Kagan would have them do?

Seven Machos said...

Jeremy is really flailing tonight. More than usual.

former law student said...

I'm not going to make too much of this. Law school favors people with excellent reading and writing skills; listening and speaking skills are hardly tested. She won't have to think on her feet once she gets confirmed.

You know, the Dean is sort of like the Community Organizer of a law school.

Deans have authority and responsibilities. Community organizers have to help the community accomplish their goals without wielding any authority.

Issob Morocco said...

Yeah, Ann, but she is a good friend of Obama.

When was the last time we heard that about a Supreme Court Nominee from the President who nominated them?

Is that a good thing for a nominee to be a good friend of the President?

Kind of an odd statement by the One today.

Quayle said...

Kagan is a placeholder nomination specifically chosen to be uncontroversial before the November 2010 vote.

That last thing that democrats needed was some flaming liberal they had to support before the election.

traditionalguy said...

Jeremy...You are a hoot. It must be a slow news day for you to throw red Sarah Palin meat into the Kagan story . Sarah's executive ability proves itself by leadership. Kagan can only prove herself by association with pointy headed academics. Kagan probably reads news papers too. I'll still bet with you that Palin is the next President along with her Dolt supporters, A/k/A middleclass Americans.

former law student said...

When was the last time we heard that about a Supreme Court Nominee from the President who nominated them?

Wasn't it W., regarding Harriet Miers?

traditionalguy said...

A word to the wise: the few defeats I suffered in my trial lawyer days occurred when I let a "friend "of mine onto the jury. Obama may be surprised at Kagan too. Let's hope she quickly asserts her self over the assumption that she is her friend Obama's sock puppet.

rick said...

Jeremy...I am impressed. You wait, patiently, until several pejorative comments are made by conservatives. Then like a caged animal who has been set free, out you come, baring your teeth, striking at anyone in your path. Shredding them to your satisfaction, and then back to your cage.

It is fun to watch....and so predictable.

It would be even more entertaining if you said something of note.

Alex said...

shorter Jeremey:

teabaggers, teabaggers, racists, blah ablah bhalabhalh BLARGH

Seven Machos said...

Alex -- You forgot duh and motherfucker.

EDH said...

I knew we talked about this before.

"A more perfect... you... nyun!"

Follow the link to Althouse's previous post on Kagan's appointment as Solicitor General.

Tuesday, January 13, 2009
Obama's pick for Solicitor General -- Elena Kagan -- has never argued a case before the Supreme Court.

In fact, it appears that she has no appellate experience at all...

Well, it will be interesting to see how this works out.

Pogo said...

Another consequence of this election.

He won, and has embarked on a long march through the remaining institutions, installing socialism irrevocably. Now the SCOTUS will bear the mark.

If not Kagan, then someone with a similar predisposition in favor of the state over against liberty.

It hardly matters whether it's Elena or someone else.

Next step: sub rosa approval of Sharia, first in Dearborn MI.

sunsong said...

In the coming debate it will be tempting but futile to ask Kagan whether she thinks Congress's enumerated power to regulate interstate commerce is elastic enough to justify requiring individuals to buy health insurance. That is, does the power to regulate interstate commerce give Congress the power to punish the inactivity of not making a private purchase from a private health-care provider? If the commerce clause is sufficiently elastic, in what sense do we still have limited government – government limited by the Constitution? Concerning another matter, it will be tempting, perhaps futile, to ask Kagan whether or not Arizona's law regarding illegal immigrants is constitutional.

She will not directly address the specifics of the health-care legislation or the Arizona law. Nevertheless, careful questioning should be able to elicit from her enough evidence of her jurisprudence to enable senators to reasonably surmise whether she believes the Constitution still places any discernible restrictions on Congress.


George Will

Beldar said...

Brilliant post, Professor Althouse. You've nailed it.

AJ Lynch said...

Althouse: Kagan has exhibited her her dazzling brilliance many many times. You and it seems a few million others are just not smart enough to see it.

wv = symplogi = latin for Logic of a Simpleton aka how Jeremy thinks

sunsong said...

Her recommendations were soporific: “Closer study of the differences across practice settings, linked to the experiences of women in those settings, could help us to improve workplaces throughout the profession.” Furthermore, “Charting a course for the profession in these times will require sustained cooperation between practitioners with the experience and wisdom to identify problems and implement solutions, and academic researchers with the ability to generate the systematic and unbiased research on which these solutions must be based.”

Kagan’s sole display of passion came during her defense of her decision to reinstate a policy that banned the military from using Harvard Law School’s main career office for recruiting. But even here, she argues that her position was not the product of any broad opinions. She was upholding the antidiscrimination regulations of Harvard University. She told the Senate in written answers to questions during her confirmation hearings for solicitor general, “The position I took does not entail a view on the exclusion of R.O.T.C. from college campuses, and I never expressed a position on the exclusion of R.O.T.C. from Harvard.”

What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.


David Brooks

Seven Machos said...

I'm pretty sure 65-percent approval Obama wouldn't have nominated Kagan. I'm also pretty sure she's not going to generate any more socialism than the man she's replacing would.

At the end of the day, I'm pretty happy about this pick. Democrats can do this kind of thing when they have the presidency and the legislature. There's no need to get up in arms about it.

Seven Machos said...

Sunsong -- While David Brooks flings around his theses a little broadly, I agree with him here. But if you think about it, Organization Kids don't have it in them to bring about revolution. It's not in them.

Kagan is a placeholder -- a Breyer.

c3 said...

Jeremy, caged animal?-

AJ Lynch said...

Yeah she appears innocuous and harmless. But has she been an impact player in her career? Or was she always the "safe" hire or appointment? Her advocates who nominated her are stressing how she is so mainstream. But you never know - power can change you.

AJ Lynch said...

Btw Go Phils ......Rockies rightfielder just flubbed a popup!

And Go Orlando Magic!

sunsong said...

Seven Machos:

While David Brooks flings around his theses a little broadly, I agree with him here. But if you think about it, Organization Kids don't have it in them to bring about revolution. It's not in them.

Kagan is a placeholder -- a Breyer.


I hope so :-)
The News Hour had someone on bragging about her intuition and how she can *read* people.

Not sure how that is helpful for a Supreme Court Justice :-)

However - there's always a chance she has calculated all her life to get to this point - so she *can* be more than a place holder. I don't know, obviously, but it's possible.

jwvansteenwyk said...

Anyone who uses the phrase "in these times" is a f-ing libtard. It's how they sniff each other out. Signalling. Like when closeted gays drop a lisp to see if they can safely flirt.

Stephen said...

Oral argument before the Supreme Court is an art. Citizen's United was Kagan's first oral argument in any court. It wouldn't be surprising if she was less than perfect. But it seems a bridge too far to jump from that inexperience as an oral advocate to future ineffectiveness in persuading fellow justices on paper and in conference. The evidence is that Kagan has ended up being very persuasive and effective in every setting where she has worked, including distinguished judicial clerkships, prior government service, classroom teaching, and academic administration in a very fractured and contentious law school. To discount her prior achievements in persuasion as social ignores the often substantial legal content of her work in those settings. It also overstates the difference between persuasion based upon legal doctrine and persuasion based upon institutional goals and moral principles.

New "Hussein" Ham said...

"But it seems a bridge too far to jump from that inexperience as an oral advocate to future ineffectiveness in persuading fellow justices on paper and in conference. The evidence is that Kagan has ended up being very persuasive and effective in every setting where she has worked, including distinguished judicial clerkships, prior government service, classroom teaching, and academic administration in a very fractured and contentious law school. To discount her prior achievements in persuasion as social ignores the often substantial legal content of her work in those settings. It also overstates the difference between persuasion based upon legal doctrine and persuasion based upon institutional goals and moral principles."

You're fucking kidding with that shit, right kid?

Do you really expect anyone to buy that bit of obfuscation?

She's a rabid anti-abortion zealot to boot who would force women back into the closet to seek out coat hangers for their abortions.

We were promised an effective, smart chief executive in Barack Obama. So hhow did he make such a collossal mistake as to be hoodwinked by subordinates into nominating an anti-abortionist when the challenge to Roe v. Wade is so close to hand?

Obama has made a dumb mistake. It remains to be seen whether, like George W. Bush, Obama simply cannot admit his mistakes when he makes them, or whether we got some change with our hope.

Kagan is a pom-pon girl in an administration full of junior high schoolers.

Next.

rhhardin said...

She'd be more persuasive if she were better looking.

lucid said...

Harvard as a qualification????

I remember when Obama was running for Presdient and when his supporters were asked what he had actually done they would all say he had been editor of the Harvard Law Review (a student-elected position.

As though this was an achievemnet that actually had anything to do with the ability to be President of the United States.

It is the same with Kagan.

Her only real qualification is that she was Dean of Harvard Law School.

It is easy to see why the narcissistic Obama would get confused about this being a qualification--it is so similar to the only "qualification" he could offer in terms of actual accomplishments.

But neither means anything in terms of the office being considered. One is essentially an administrative position; the other was an election based on an appeal to white guilt (oh--maybe that is relevant to his getting elected president).

A.W. said...

i have been saying this since yesterday. i am tickled that she is our nominee, BECAUSE SHE STINKS AS AN ADVOCATE.

From Inwood said...

I agree with Seven M & Pogo

Elections have Consequences.
Bad Elections have Bad Consequences.
Absolutely Bad Elections have Absolutely Bad Consequences.

The Anointed One won. One more choice & SCOTUS will feel the consequences.

BTW, despite Prof A’s defense of The Hon Kennedy, Those Who Count have decided that he is a mental midget to be manipulated by four strong Libs & four strong Cons. Hope he’s happy.

Roger J. said...

I have absolutely no idea about how the supremes deal with each other behind closed doors--nor does anyone else who hasnt been a supreme.

Ms Kagan is probably not a bad choice for conservatives--she appears to be relative lightweight (intellectually speaking) and does not appear to be a flaming progessive--conservatives could have gotten a whole lot worse.

Confirm her after the appropriate inquisition .

former law student said...

She'd be more persuasive if she were better looking.

The curve of persuasiveness vs. women's attractiveness probably has a sweet spot.

I find it difficult to pay attention to what a really attractive woman is saying, at least until she is familiar to me.

And probably a butt-ugly woman inspires thoughts about how butt-ugly she is, which also would interfere with listening for content.

So I suspect there's a broad peak in the middle where (at least male) auditors can pay attention to the message and not the container.

A.W. said...

FLS

She would be more persuasive if she stopped taking frighteningly radical positions.

owlworks said...

Sounds like a "Peter Principal" Presidency in action.

ReRe said...

Sounds as though Kagan is a moderate intellect who has risen to the heights of her audacious aspirations through charm and persuasion, without any preparation to do the actual job. Hmm... whom does that remind me of?

Robert said...

My take on the Kagan pick is that Pres. Obama has realized that the left have dramatically overreached and provoked a popular backlash against the Democrats that will cost them dearly. The smart remedy is a détent with moderates and conservatives to preserve the status quo, including all of the left's gains to date (e.g. ObamaCare). Ms. Kagan can be sold to the sheeple as a thoughtful moderate who will broker a "civil discussion" of the day's issues, i.e. a verbal pablum so infused with meaningless "nuance" that nothing will come of it, that is, a détent will be achieved.

I like the tactic, and it just might work. Then again, it might not.

After nine long years of the left's slash and burn politics, the country is in the mood for some civility and cooperation. On the other hand, both parties have so thoroughly mismanaged the country for the past 21 years that incendiary issues lurk around every corner, e.g. illegal immigration.

On most of these issues, the left hold the unpopular position, and the sheeple have become distrustful of their traditional shepherds (politicians, party machines, unions, MSM elites). Therefore, keeping the sheeple agitated and distrustful is the obvious counter-strategy to the left's détent, and the Arizona statute seems to demonstrate that the GOP has realized this.

The next three years should be interesting.

eamon said...

Any employer worth his salt would hire someone with experience to fill a position as important as this one. Harriet Miers, an accomplished woman, was nominated by Bush during his tenure and their assertion was correct in it's position that she lacked needed bench experience and therefore not eligible to the SCOTUS. Ms. Kagan, Like Mr. Obama, is a blank slate, so little known about her professional experience in addition to troubling questions about what is known of her personally brings serious questions in the equation of her eligibility. Pick someone else.

Kid said...

Answer: Horrendous

Kid said...

Answer: Horrendous

HDHouse said...

eamon said...
"...in addition to troubling questions about what is known of her personally brings serious questions in the equation of her eligibility."

oh this is gonna get a peach of an answer I can just tell. Eamon...ohhhhh eamon???

define the personal troubling questions....?...go ahead....ever racist homophobic fruitcake on this board is salivating over the potential of you tearing a foot off your leg and sticking it either up your ass or in your mouth....

John said...

Kagan is lost in her own demented miasma....... She orates in an aggressive, combative and righteous manner so as to attempt to prop up her nothing more than "Potemkin Village" argument - position at best. In other words, the glass IS altogether empty. Further, her years rummaging around a number of legal circles, starting with law school have clearly demonstrated that she is inherently not in possession of either true legal understanding or competence. (She missed her calling in life; that of a taxi dispatcher.)

Yet again nothing other than an activist. Just what any court, regardless of jurisdiction cannot afford.............

schaefer_don said...

Suffice it to say our prospectful latest member of The Supremes did not fare too well. That's no surprise, given that up until 15 mos ago when PrezBo appointed her solicitor general, "General Kagan" had no litigation experience, having spent her entire legal career in academia. As my mother used to say, "It's not what you know, it's who[m] you know".

It's worth listening to the transcript of the oral argument. General Kagan made, in my opinion as a practicing lawyer for 21 years, four glaring errors no semi-competent first-year moot court law student would do... and that within the first 100 words of her argument: 1) She was clearly reading from her brief (News flash to Generalissimo Elena: Never--repeat, never--read your brief to the justices. They've read your brief already in preparation for oral argument, and don't need your Flatbush-accented rendering echoing through the hallowed halls of court. Oral argument is to complement and clarify any remaining cloudy issues touched on in the brief); 2) she misstated the history of the law in question, and was quickly caught; 3) she proceeded to re-read her statement that the justices found troubling in the first place (2nd news flash to Elena: learn to take a hint. Your first argument failed. Move on.); and 4) she demonstrated complete ignorance of the appellate process, to wit: the justices only take up a case when they are asked to do so (emphasis). In the legal vernacular, it's called a "petition".

willydfromtn said...

She supports restriction to speech if the government deems it dangerous. I would not want that thought process on the court...

classicliberal2 said...

It doesn't matter how "persuasive" she may be--that's not an argument for putting her on the court. That was the same argument that was advanced for Sonia Sotomayor, that she was a "persuader." Even raising the question is Mayberry Machiavellianism of the absolute worst sort.

Conservatives win, when it comes to the courts, because they don't sit around with these sorts of stupid thoughts in their heads--they pick reliably hardcore reactionary ideologues, who have formed a lockstep block on the court. In trying to foist Kagan on us, Obama is giving that block its fifth (and sometimes sixth) vote on many of the most important issues that will come before the court in the near future. That's unacceptable.

Kagan needs to get the Harriet Miers treatment, and Obama needs to be punished for even trying to foist her on the country.