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Kagan Confirmed: ‘Reliable Liberal Vote’ or ‘New-School Moderate’?

August 5, 2010 at 6:30 PM EDT
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The Senate confirmed Elena Kagan to the Supreme Court Wednesday by a vote of 63 to 37. Kagan will be the third female judge on the Supreme Court joining Justices Ruth Bader Ginsburg and Sonia Sotomayor. Ray Suarez examines the future of the High Court with law professors Paul Butler and Nicholas Quinn Rosenkranz.
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JUDY WOODRUFF: President Obama now has a second U.S. Supreme Court justice as part of his legacy. Elena Kagan was confirmed today in the Senate by a vote of 63-37.

Five Republicans joined all but one Democrat and two independents in voting yes.

The Senate action came three months after President Obama announced Kagan’s nomination in the East Room of the White House. She will join justices Ruth Bader Ginsburg and Sonia Sotomayor as the third woman serving on the court, the most ever at one time.

Late today, the president hailed the outcome.

U.S. PRESIDENT BARACK OBAMA: Today’s vote wasn’t just an affirmation of Elena’s intellect and accomplishments. It was also an affirmation of her character and her temperament, her open-mindedness and even-handedness, her determination to hear all sides of every story and consider all possible arguments.

JUDY WOODRUFF: Kagan’s assent to the high court came despite sharp criticism throughout the process from most Republicans. They attacked Kagan’s move as dean of Harvard Law School to block military recruiters from the school’s career services office.

She argued the military’s don’t ask, don’t tell policy against gays in the military violated Harvard policy. But Texas Senator John Cornyn said Kagan’s actions raised red flags about her.

SEN. JOHN CORNYN (R-TX): Dean Kagan’s actions in taking every step legally possible to relegate the military to what she herself believed was separate but equal status placed an unmistakable stigma on the military during a time of war.

Now, her decision to stigmatize the military, I believe, is reason enough to oppose her nomination to a lifetime seat on the United States Supreme Court.

But her actions as dean are troubling for another reason as well. I believe her actions as dean indicate strong evidence that, as a justice, someone sitting in judgment on the United States Supreme Court, she would tend to advance her political preferences, rather than take a traditional approach of a judge in following the law.

JUDY WOODRUFF: Other Republicans targeted Kagan’s lack of judicial experience. For the past year, she has served as solicitor general, the nation’s top lawyer. She was also a lawyer and policy adviser in the Clinton White House. She clerked for Supreme Court Justice Thurgood Marshall in the late 1980s.

But she has not served as a judge, as Alabama Senator Jeff Sessions pointed out.

SEN. JEFF SESSIONS (R-Ala.): She has been more deeply involved in politics than law, and has frequently put her politics above law. She’s never been a judge, never argued even a case before a jury. She has practiced law for just three years. She has less real legal experience than any nominee in the last half-century.

JUDY WOODRUFF: New York Democrat Charles Schumer said, Republicans claim Kagan would be an activist, but don’t mind the current court’s wiping away decades of precedent.

SEN. CHARLES SCHUMER (D-N.Y.): This conservative majority has become the most activist court certainly in decades. These truly activist decisions show little respect for Congress, for the executive branch, and for the well-settled understandings that American people commonly hold about our democracy. And, yet, somehow, they label General Kagan as an activist because she wants to follow precedent. That’s not fair and that’s not true.

JUDY WOODRUFF: A handful of Republicans supported the nomination.

Speaking Tuesday night, Senator Lindsey Graham of South Carolina said he gives the president the benefit of the doubt.

SEN. LINDSEY GRAHAM (R-S.C.): I have no problem with Elena Kagan as a person. I have no problem with her academic background. I have no problem with her experience as a lawyer. Even though she has worked for justices that I wouldn’t have ruled like, even though she has taken up political causes I oppose, that, to me, is just part of democracy.

JUDY WOODRUFF: Kagan’s first day on the bench will come in October, when the court begins its fall term.

We get two different views now on how the newly confirmed justice may affect the makeup and the direction of the high court.

Nicholas Quinn Rosenkranz teaches constitutional law at the Georgetown University Law Center. And Paul Butler is a professor of law at the George Washington University Law School.

Gentlemen, thank you both for being with us.

Paul Butler, to you first.

We just heard the president say it’s not just her intellect, but it’s her character and her temperament that she brings. What does she bring? How will she change this court?

PAUL BUTLER, professor, George Washington University School of Law: So, she’s replacing Justice Stevens, who was kind of this old-school liberal in the mold of Thurgood Marshall and William Brennan.

He was an ideologue and, at the end, kind of this angry old man. He would write these opinions saying nobody on the court when I joined it 35 years ago would have thought this.

Elena Kagan, she’s a new-school moderate. She’s a pragmatist, kind of in the mode of the president who appointed her. She’s good at making deals with conservatives. So, she probably isn’t going to take the court in a left direction. But what she will be good at doing is kind of moderating the conservatives, having them go not so far out on a limb in their opinions.

JUDY WOODRUFF: Nicholas Rosenkranz, a moderating force, a pragmatic force on this court?

NICHOLAS QUINN ROSENKRANZ, Constitutional Law professor, Georgetown University Law Center: Well, I think there’s every reason to believe that Justice Kagan will be a reliable liberal vote.

She is replacing a liberal justice, and I think she will end up being a consistent liberal vote. But she’s extremely smart and has — she’s very open-minded, and she’s won the respect of people on both sides of the aisle. So, I think she will, at a minimum, give both sides a fair hearing.

But, at the end of the day, I think we can expect she will be a consistent liberal vote.

JUDY WOODRUFF: A consistent liberal vote. Is that consistent with what you’re saying, Paul Butler?

PAUL BUTLER: Well, you know, it takes a while to grow into your role on the court. So, Justice Sonia Sotomayor and justice-designate Kagan will take some time to kind of grow into themselves.

So, I think, at the end, she will kind of have the same votes as Justice Stevens, but she won’t have the same force in terms of rhetoric. The hope is that, you know, maybe she can use the same kind of skills of persuasion that she used at the Harvard Law School.

So she will invite Justice Roberts out to Starbucks and say, hey, I know I’m not going to change your mind about campaign financing, but maybe could you have a little bit more respect for what the states are doing? Could you have — could you moderate your opinion? Do you have to say that?

And, there, she might really be influential. She’s brilliant and she’s charming. And that’s something that, other than Justice Sotomayor, we haven’t seen with so many of the progressives on the court.

JUDY WOODRUFF: Nicholas Rosenkranz, is that the way it works, that she by — not just by force of her intellect, but the personality, the skills of persuasion, could affect her ability to make a difference on this court?

NICHOLAS QUINN ROSENKRANZ: Well, I’m sure that that’s what President Obama is hoping. And she is undoubtedly very charismatic and very persuasive.

But the other justices have been doing this for quite a while, and they’re very much their own people. It’s hard to imagine that she’s going to arrive at the court and instantly be changing minds in any sort of dramatic way.

But she is very charismatic and very persuasive. So, she will — I’m sure she will be having such conversations with the other justices.

JUDY WOODRUFF: But, staying with you, not instantly change minds, but, over time, does she have the potential to change thinking, change the direction of the court, do you think?

NICHOLAS QUINN ROSENKRANZ: She’s very smart and very charismatic and very persuasive. So, I’m sure she will have an effect at the court and I’m sure she will have an effect in her conversations with the other justices.

JUDY WOODRUFF: What about, Paul Butler, just the sheer force of her intellect? You have both commented on that she’s smart. How much difference does that make on the court?

PAUL BUTLER: Well, Justice Sotomayor is brilliant as well. So, it takes something more than just being smart.

You know, some people hope that Justice Kagan will be the liberal Justice Scalia. So, no one can deny Scalia’s brilliance. But he doesn’t have a lot of force in the court. He writes these opinions where he throws these flames, and it’s kind of red meat for the conservatives, but not a lot of other people are persuaded by him.

So, one role for Justice Kagan might be that, to just kind of rile up the progressives. But, again, a probably more practical role and one suitable for her temperament is to reach out to the conservatives, to kind of make deals with them in the way that you can do as a justice on the highest court in the land.

JUDY WOODRUFF: It’s been noted recently, especially in a piece in The New York Times recently, Nicholas Rosenkranz, that — the thesis of that piece was that this is a very conservative court and an activist conservative court. As a baseline, do you agree with that premise?

NICHOLAS QUINN ROSENKRANZ: I don’t really agree with that premise.

I would say, if you read an article like that, or if you hear the claim that the court is particularly conservative or particularly liberal, two questions to ask yourself, first, how are we defining those terms?

So, what quite do we mean by a liberal decision or a conservative decision? You might, for example, think that a liberal decision was a decision that defended civil rights or took a broad reading of the Bill of Rights, but then liberals don’t actually always mean all of the Bill of Rights. So, they don’t quite mean the Second Amendment, for example.

You might think that a liberal decision is a decision striking down acts of discrimination, but then liberals will define that idea to mean just discrimination against certain groups, but not other groups.

JUDY WOODRUFF: So…

NICHOLAS QUINN ROSENKRANZ: We have to be careful to see exactly how these terms are being defined. And I think the piece that you’re referring to played some games with the definition of those terms.

JUDY WOODRUFF: Well, Paul Butler…

NICHOLAS QUINN ROSENKRANZ: And the second thing…

JUDY WOODRUFF: Let me just — let me just…

NICHOLAS QUINN ROSENKRANZ: Sorry.

The second thing you — you need to keep your eye on is quite who is making these claims. So, oftentimes, you will hear from legal academics that the court is extremely conservative. You have to remember that the legal academy itself is extraordinarily liberal. So, 90 percent of them are to the left of Nancy Pelosi. So, from where they sit, the court looks quite conservative.

JUDY WOODRUFF: Paul Butler, I ask this question because it, of course, has bearing on where Elena Kagan may or may not take the court.

PAUL BUTLER: Sure, Judy.

And if you look at Chief Justice Roberts in the last term, an extremely conservative leader of the court who got his way 90 percent of the time. And, so, if you look at the significant opinions, where the court gives corporations First Amendment rights, where it restricts gun control, we see a court that’s really taking the country outside the mainstream in areas like corporate power, abortion, civil rights.

So, you know, I don’t think it’s a direction that most of the country wants to see us go in.

JUDY WOODRUFF: And so, given that, Elena Kagan can do what on this court?

PAUL BUTLER: Well, one, she, I hope, will be a consistent, reliable vote. And, again, she can temper the rhetoric of the court.

Rhetoric’s real important. They put a line in one opinion, and it later turns out to have a whole lot of force in another opinion.

PAUL BUTLER: And, you know, she can be — she can be a face, a kind of nice face for the progressive movement, to show that what progressives want isn’t really so scary; it’s not out of the mainstream; it’s just good old-fashioned civil rights, civil liberties, American values.

JUDY WOODRUFF: Very quickly, Nicholas Rosenkranz, the fact that she will be the third woman serving at the same time on the court, will her gender have a bearing on what this court does?

NICHOLAS QUINN ROSENKRANZ: No, I — I doubt that it will.

The job of a Supreme Court justice is to read carefully and parse carefully the words of the U.S. Constitution and the words of U.S. statutes. And it really shouldn’t have an effect on that project, what your gender is.

I think Justice Kagan is a superb lawyer, and she will be an excellent reader of legal texts. And that’s what matters, really.

JUDY WOODRUFF: And, Paul Butler, quickly, a word on that.

PAUL BUTLER: You know, she will vote, I think, a lot like Justice Sotomayor and Justice Ginsburg. So, there will be some temptation for scholars to look at a feminist jurisprudence. But it’s usually different from how Justice O’Connor would have voted.

Some people say that women justices are more consensus-builders. For the first time, we will have a critical mass of women on the court, so, if nothing else, it’s great news for the over half of law students who are women. It’s another crack in that glass ceiling.

JUDY WOODRUFF: Paul Butler, Nicholas Rosenkranz, thank you both.

NICHOLAS QUINN ROSENKRANZ: Glad to be with you.

PAUL BUTLER: Great to be here.