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The Kagan Nomination: In Plain English

If you’re a Court watcher, you’ve undoubtedly been hooked this week reading all about President Obama’s nomination of Solicitor General Elena Kagan to be an Associate Justice on the Court.  As I mentioned a few weeks ago, the water cooler talk will only get more involved and more interesting as the confirmation process goes on.

So let’s discuss that confirmation process.  After all, you may have heard that Kagan herself once criticized the process of questioning by senators as fairly worthless, at least in its current formulation.    And if you’ve been watching the news, you’ve seen lots of statements from lots of people either supporting or decrying the nomination. 

So what is that all about?  Well, Article II of the Constitution provides that the President will nominate Supreme Court Justices subject to the “advice and consent” of the Senate.  The President makes the nomination, which requires a majority vote by the Senate to confirm.  Under the Senate’s rules, the nomination could be subject to a filibuster, which would require 60 votes to break.

In today’s highly polarized political climate, a chief consideration in selecting a nominee is the candidate’s confirmability.  Especially when the President has a strong majority in the Senate, there is little doubt that a nominee who knows the Constitution well will be confirmed.  Even so, interest groups and Senators often find it necessary to comment publicly about a nominee because their constituents expect them to.  Many of these comments may be merely ceremonial, but even the most strongly felt sentiments are unlikely to derail a nomination of a candidate when the same party is in power in both the White House and the Senate.

Can it happen?  Sure, if the candidate has serious skeletons in the closet (defining “serious” will depend on the times and the situation, as in the nomination of Douglas Ginsburg, who withdrew after disclosures that he had smoked marijuana as a law professor) or is unqualified (as many opined in the case of Harriet Miers).  But generally, the confirmation process has become one in which the Senators have the opportunity to ask questions of the nominee (for their own benefit and that of viewers back home) and the American public gets a glimpse of the future Justice – perhaps for the last time, as there are no cameras at the Supreme Court.

Now that Kagan has begun the process of making courtesy calls on Capitol Hill, we’ll be seeing many photos of her smiling next to Senators on both sides of the aisle.  These Senators will welcome her into their offices, whether or not they support her nomination, and they will almost invariably be cordial and polite.  Some Senators will communicate their thoughts about the candidate in press conferences after the meetings, but, again, these statements will be largely for the purpose of going on the record in support of or against her confirmation and will have little to do with the ultimate outcome of the process.

It’s likely that Kagan will pay a call on almost all of the Senators – Justice Sotomayor visited 89 out of 100, most of them while she had a broken ankle – but even as she’s making the rounds, Kagan will also be working hard behind the scenes with a White House staff appointed to prepare her for the formal confirmation hearings, or what you’ll see on TV.  These prep sessions are called “murder boards,” and they’ll feature tough questions that the Senators are likely to ask.  Kagan is likely to feel right at home in these sessions – they’re likely quite similar to the moots, or practice oral arguments, in which the lawyers in the Solicitor General’s office engage before every Supreme Court argument.  She’ll also be working with lawyers in the White House to fill out a long and detailed questionnaire, just released Friday, that will require her to list all of her publications (right down to the tiniest letter to the editor), her significant legal activities, and all of her communications to the Harvard community over her six years as Dean. 

Meanwhile, the Senators’ staffs will be reading anything and everything that they can about Kagan, both her own work or opinion and that of others.  They’ll dissect any statements she’s made – remember the heyday some had with Justice Sotomayor’s statement about a “wise Latina”? – and consider how they can use that language in their efforts for or against her confirmation. 

Sounds like a busy time, right?  Well, probably because she wants to demonstrate her neutrality with respect to cases and issues that might come before the Court if and when she takes up chambers there, Kagan has cancelled most appearances and speeches in the coming weeks, and she will decline to participate in any new cases in the Solicitor General’s office.  All of this to get ready for what will almost certainly be some of the most significant three or four days of her life:  the Senate confirmation hearings.

The hearings will take place in the last week of June or the second week of July (there is a Senate recess in between).  That will give the Senate enough time to examine Kagan’s record and questionnaire, while allowing for a vote by the full Senate before the Senate’s August recess, and Kagan’s investiture before the Court begins its Term on the first Monday in October. 

In these hearings, Kagan will make an opening statement, then turn herself over to questions from the Senators.  Some of these “questions” will actually be statements praising or criticizing Kagan as a potential Justice, but some will be targeted and thoughtful.  In fact, in light of Kagan’s criticism of the hearing process, some are expecting her hearings to be more rigorous than the last several such hearings have been. 

Next week, we’ll talk more about the long road to confirmation, as well as about any big opinions or orders issued early in the week.