Legal Commentary

The nomination of Elena Kagan was a risky choice for President Obama.  While she is likely to have views more or less sympathetic to the President's -- although she's probably more of a free speech hawk than him -- she presents the President with political risks.  Her opponents are casting her as inexperienced because she has never been a judge and only practiced law for a few years, and that line of attack has purchase with the American people.  My own view is that the Supreme Court needs fewer people who were previously judges; some of the finest Supreme Court Justices had never before been judges, like William Rehnquist, Earl Warren, and Louis Brandeis.  Judicial experience should not be mandatory for a Supreme Court appointment.  Still, casting a nominee as insufficiently experienced and lacking in the requisite qualifications may be the most powerful line of attack in any Supreme Court confirmation battle.  



In Advise and Consent, Lee Epstein and Jeffrey Segal examined the history of confirmation battles and found that concerns about experience and qualifications were more difficult to overcome than concerns about ideology.  With one especially notable exception, Robert Bork, most nominees who are opposed on the basis of their ideology end up being confirmed.  Nominating someone with views similar to his own is one of the perks of being President.  But appointing someone who is thought to lack the requisite experience and qualifications can be devastating.  Harriet Miers was forced to withdraw because she was seen as an unqualified crony of President Bush; Abe Fortas's nomination to be Chief Justice was rejected, even though he had already served on the Supreme Court, because he was seen as lacking the most important qualification for a Justice, impartiality (he had accepted payments for speeches from private businesses); Douglas Ginsburg still sits only on the D.C. Circuit because, as a professor, he showed disrespect for the law by smoking pot.  



Barring any extraordinary revelations, Kagan has the votes to be confirmed.  But President Obama doesn't need a squeak-though victory.  His presidency is on the ropes already.  If he had chosen a John Roberts of the left -- someone with a long background of arguing before the Supreme Court, like, say, a Seth Waxman -- this nomination could have been a political victory for the President.  Instead, even if Kagan gets through and turns out to be a terrific Justice, the President will have lost some of the confidence of the electorate that is so precious to him now.