As soon as President Obama nominated Elena Kagan for the seat on the United States Supreme Court held by the retiring Justice John Paul Stevens, questions about the nominee began to pile up: Is Kagan a stealth liberal or a stealth conservative? Is her lack of judicial experience a plus or minus? Is she gay or straight? Does that matter?
With the Senate confirmation hearings upon us, no one can say for sure how the details of public discussion will develop. But just about anyone familiar with Supreme Court appointments already knows that the debate over Kagan will ultimately be dominated by two conflicting images.
Just as has been the case in the past, the first image central to the current confirmation will be that of the nominee claiming to embody conventional ideals of judicial decision making.
John Roberts invoked the ideal of judicial neutrality, telling us that he would be like an umpire, calling balls and strikes rather than rounding the bases and scoring runs. "Judges and justices are servants of the law, not the other way around," Roberts said. "Judges are like umpires. Umpires don't make the rules; they apply them."
During his confirmation, Samuel Alito identified himself with the ideal of judicial fairness, pledging to avoid prejudgments and to listen carefully to the facts and arguments in each case. Good judges, Alito said, are "always open to the possibility of changing their minds based on the next brief that they read or the next argument that's made by an attorney" in court.
For her part, Sonia Sotomayor draped herself in the mantle of judicial restraint, arguing that principles that drive judicial decisions come solely from the Constitution and statutes rather than from the judge's personal experiences. "Many senators have asked me about my judicial philosophy," Sotomayor said. "It is simple: fidelity to the law."
There is also the second image in the confirmation process that will vie for attention with the image of the nominee embracing the conventional judicial ideals of neutrality, fairness, and restraint.
This second image will be of elected officials and interest groups working energetically to select a nominee who is deeply and unalterably committed to specific political views. Partisans will, of course, frame their arguments in terms of the very ideals that the nominee endorses. But it will be plain that behind the talk of umpires and legal fidelity, politicians and pressure groups are competing to install ideological fellow travelers on the bench. So we can expect that we will hear senators and party activists reprise the roles they played during the Roberts, Alito, and Sotomayor hearings. With one voice, political actors will decry the influence of politics on the high bench. They will deny that they are applying any kind of ideological "litmus test" and will insist that they are simply supporting judicial nominees who will adhere to the law. And, yet, even as they extol the very judicial virtues that the nominee claims to possess, it will be obvious that political actors actually want something quite different: rather than impartiality and open-mindedness, they seek a person who will reliably advance issues of interest to important political constituencies.
What will happen when the Kagan confirmation is beset by these two competing images, when the nominee's pledges of impartiality are surrounded by partisan efforts to pick a justice who will decide cases in a preferred direction?
Here, too, it turns out that we already have a pretty clear idea of what will occur.
A number of pundits and commentators will lament the corrosive force of politics. The aggressive campaign to select a politically minded justice will stoke suspicions that Kagan does not really mean it when she affirms her unwavering allegiance to conventional judicial ideals. The second image of a process shot through with politics will begin to eat away at the first image of the nominee as an impartial arbiter. As a result, claims of judicial neutrality, fairness, and restraint will begin to look like a mere means of smuggling political commitments onto the bench.
The worry that Kagan's confirmation is becoming a kind of a sham will not, however, stop the process from going forward. After all, the idea that confirmation is an artificial and misleading performance is not news. In 2005, Joe Biden claimed that the Supreme Court confirmation process had devolved into an empty "kabuki dance," and 10 years before that Kagan herself called confirmation a "vapid and hollow charade."
We tolerate the uneasy mix of principle, posturing, and political pressure in confirmations because we value a process that simultaneously permits us to demand impartiality and to advance our own narrow interests. We want to have a fair system and at the same time we also want to make sure that our side wins.
We knew that long before the questions about Kagan were ever posed.
Keith J. Bybee teaches law and political science at Syracuse University and is author of the forthcoming book, All Judges Are Political--Except When They Are Not: Acceptable Hypocrisies and the Rule of Law.