Bench Memos

A Simple Distinction

This TPM article on the possible Supreme Court vacancy includes this bizarre passage about the candidacy of current Solicitor General Elena Kagan:

She also has the advantage of having been confirmed to her current post last year with seven Republican votes.

“It would be hard for Republicans to explain how they voted to confirm her for solicitor general without hesitation but she is now unacceptable,” UC Berkeley law professor Daniel Farber, who clerked for Stevens early in his career, told me in an interview.

Those crazy law professors—especially Berkeley law professors—will say the silliest things.  Set aside the fact that Kagan received a remarkable 31 votes against her confirmation as Solicitor General and that there’s no support for Professor Farber’s contention that the seven Republicans who did vote for her—including Coburn, Hatch, and Kyl—did so “without hesitation.”  Let me briefly explain why Farber’s assertion is wrongheaded:

1.  It’s widely recognized that a senator may adopt a more deferential standard for an executive-branch nomination than for a lifetime seat on the Supreme Court.  (My recollection is that at least some of the senators who voted for Kagan for SG made that point explicitly.)  Update:  One reader points out that it’s new Democrat Arlen Specter who would have the greater difficulty explaining how he could vote against Kagan as SG (indeed, lead the case against her) and then support her from the Supreme Court. 

2.  Any Republican senator who voted for Kagan for SG on the ground that she had promised to set aside her personal views in representing the interests of the United States would have ample reason to believe that Kagan has betrayed her promise—and to distrust any assurances that she would make that she wouldn’t indulge her own values and policy preferences as a justice. 

3.  Kagan ducked lots of questions at her SG hearing.  But she’s called for the Senate “to engage [Supreme Court] nominees in meaningful discussion of legal issues,” lest “the confirmation process take[] on an air of vacuity and farce.”  (“Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919, 920 (1995).)  Senators may fairly hold her to the Kagan standard.