Today’s Wall Street Journal reports that “Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.” Oddly, the article lumps together Solicitor General Elena Kagan and D.C. Circuit judge Merrick Garland as leading examples of “less-controversial candidates.”
In my judgment, Kagan would be very likely to arouse significant Republican opposition, far more so than Garland. For starters, she received 31 Republican “nay” votes and only seven positive votes (with three Republican senators not voting) just last year on her confirmation to be SG. It’s reasonable to assume that all of the senators who voted against her (except newly minted Democrat Arlen Specter and departed senator Mel Martinez) would start off strongly inclined to vote against her for the Supreme Court, and that, given the much higher bar for the Supreme Court, so would many of the other Republicans. There’s certainly nothing that’s happened over the past year to dispel any of the concerns that were raised during Kagan’s confirmation process, including by her abject failure to engage in a meaningful discussion of legal issues.
Kagan earned goodwill among conservatives for her deanship of Harvard Law School. But her fair treatment of conservatives, and the broader administrative skills that she displayed, signal very little about how she would be as a justice. At best, she is a wild card. Most likely, she would be largely indistinguishable from Ruth Bader Ginsburg.
By contrast, Judge Garland has earned the respect of folks across the political spectrum for his judicial craftsmanship in his 13 years on the D.C. Circuit. Unlike Kagan, he may well be the best that conservatives could reasonably hope for from a Democratic president. While he’s certainly no judicial conservative, he would seem to represent what I described in this Washington Post piece last year as the “once-dominant species of liberal proponents of judicial restraint,” and his nomination might well “make great strides toward ending the judicial wars.”