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: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.
Kennedy: In the course of this argument, have you covered point two? ... I would like to know what it is.She quickly moved on. Four months later, Kennedy wrote a 5-4 opinion that handed Kagan and the U.S. government a sweeping defeat.
Kagan: I very much appreciate that, Justice Kennedy. I think I did cover point two.
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.
May 10, 2010
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.