Internet Commentary and the Nominations Process

By Tom Goldstein
on Apr 15, 2010 at 3:02 pm

One of the Internet’s great virtues is that – through tools like blogs – it creates a platform for a wonderfully diverse set of views.  That said, there is unmistakably a equivalent downside:  extreme voices tend to populate the Internet because people with the most committed and strongest opinions are generally the most likely to take the time to write.

The balance between the positive and negative aspects of the Internet most often tips in the wrong direction when the media is reporting on political and ideological issues in an area in which there is a desperate shortage of content.  Extreme views are easily located through the Internet and have the beauty of simplicity and clarity of vision; they make for wonderful sound bites that fit perfectly into “on-the-one-hand, on-the-other-hand” stories.  But because the press can’t bear to cite as a commentator’s actual qualification that he is “an Internet blogger in the one percent of wing-nuttery,” extremism is deprived of its context and is mistakenly conveyed as mainstream analysis and commentary.

This phenomenon regularly plays out in Supreme Court nominations.  The Justices obviously decide hot-button social issues in which both liberals and conservatives are heavily invested.  So committed Internet commentators on the ideological fringes have a field day attacking potential nominees.  That’s all well and good, if only because they are preaching to the converted by posting on blogs whose readers are entirely self-selected because they share the same ideology.

The problem is that when the press is called on to analyze a nuanced question like the views of a Supreme Court nominee, it’s always so much simpler to quote an analyst, and it’s so much easier to run a Google search that locates clear-minded attacks on (or praise of) the relevant candidate.  But the real world is generally much more complicated than those zingers would convey.

On the attack side, the person most caught in the cross-fire today is Solicitor General Elena Kagan.  She’s taking both barrels from bloggers who are arch-conservative (Ed Whelan) and arch-liberal (Glenn Greenwald).  And those extreme views are starting to leak into the media, reported as if they were objective commentary.

One quick note before I dig a bit more into the substance.  I’m not a cheerleader for Elena Kagan’s nomination, and my February post on the nomination process is clear on the issues that her potential nomination raises.  I have said that I think it’s the most likely outcome, not that it would be a good or bad thing.  What I write on these issues – for example, in my pre-nomination posts on why John Roberts and Sonia Sotomayor were the likely nominees for their seats, and why Harriett Miers would not be confirmed – leans more towards prediction than endorsement or opposition.  I’ve responded to ideological attacks on actual and potential nominees on both the left and the right because, for whatever reason, the missing voice seems to be one that reflects the essentially centrist views of most of the country.

Along those lines, I wanted to take up the criticisms of Whelan and Greenwald, which I think can be addressed with a single point:  both are almost certainly correct that Kagan does not share their extreme views, but that is a totally different question from her suitability for the Supreme Court.  She is obviously not a hard-core conservative or liberal.  She is equally obviously qualified to serve as a Justice.

Whelan writes that “there is no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist.”   There is no less substantive phrase in the law today than “judicial activist”; it just means someone who reads the law differently than you.  Conservatives think liberals are “activists” for Roe v. Wade; liberals think conservatives are activists for Citizens United.  And so on.  “Doctrinaire liberal” is the phrase that Whelan uses to refer to essentially the entire left of the Supreme Court – Stevens, Sotomayor (presumptively, though these are early days), Ginsburg, and Breyer.

Stripped of the rhetoric, Whelan is saying that Kagan will be like other Democratic nominees to the Supreme Court, whom he (as an exceptionally conservative author) finds objectionable.  I think that’s probably exactly right.  And his views are sincere and consistent, though I think he reads too much into the limited data points that can be derived from Elena Kagan’s record.  But without the context of knowing that Ed Whelan is as committed a conservative author on these questions as there exists in America, the reader can get the misimpression that there is a reason to believe that Elena Kagan is the second coming of arch-liberalism in this country – the reincarnation of her former boss, Thurgood Marshall.

So too from the left.  Glenn Greenwald criticizes Elena Kagan’s nomination on the ground that she is too conservative.  But he is writing from the progressive fringe; almost every potential nominee would be insufficiently left-leaning for his taste.  That is particularly true regarding questions of executive power, an issue about which he cares passionately.

But his passion can be misinterpreted as conveying a real reason to believe that Kagan is actually conservative.  The essence of Greenwald’s critique is that, on questions of executive power, Kagan has defended the positions of the Clinton Administration (in a Harvard Law Review article) and the Obama Administration (in her role as Solicitor General).  Fair enough.  But the fact that a Democrat supports the policies of the two most recent Democratic administrations (in which she has served) does not support the conclusion that she is a conservative.

The other piece of evidence to which Greenwald points is Kagan’s answer at her confirmation hearing to a question from Senator Graham (see exchange starting at 01:37:00), who had previously asked Eric Holder (at his confirmation hearing) whether captured members of al-Qaeda could be indefinitely detained on the ground that they were captured during a war.  Holder answered yes.  Graham subsequently asked Kagan whether she agreed, and she responded that Graham and Holder had accurately stated the law.

Greenwald’s reliance on that single answer seems overwrought.  It is easy to read too much into individual answers to isolated questions at confirmation hearings.  Kagan was in the impossible position of being asked whether she rejected the views of the current Attorney General – who, if she were confirmed, would be her boss.  Read in the proper context, her answer that Graham was correctly stating the law – hardly an expression of her own views – seems unremarkable.

I think I can illustrate the point, even to Greenwald’s satisfaction.  He holds out Dawn Johnsen as the ideal progressive Obama Administration nominee.  But Senator Hatch subsequently asked Johnsen (in a wonderful Senatorial version of the children’s game “telephone”) whether Johnsen agreed with Kagan’s answer that Kagan agreed with Holder.  She responded:  “Yes, I do agree with Dean Kagan’s statement that under traditional military law, enemy combatants may be detained for the duration of the conflict.  That is what the Supreme Court said as well in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . .  As indicated above, I do not believe that release or criminal prosecution are the only possible dispositions for detainees.”

Finally, Greenwald points to the fact that Kagan did not forcefully articulate an opposition to President Bush’s expansive views of executive power in the “war on terror.”  It’s certainly true that as Dean she adhered to a policy of avoiding most highly controversial questions that did not directly implicate the school – but that is a common practice among deans because of their unique role on the faculty.

More broadly, although Elena Kagan has said very little on ideological and constitutional questions – creating the parallel to David Souter I raised in my February post – all the available evidence is that she would emerge on the Court’s center-left.  She put her academic career on hold twice to join both of the Democratic Administrations that have held office during her professional life.  Those who knew her in the Clinton White House thought enough of her and her views that she was nominated at a very young age to the D.C. Circuit, which would transparently have positioned her for the Supreme Court.  The parallels are much stronger to John Roberts in that respect than Souter.

Because of my own curiosity, I’ve also tried reaching out to her more liberal colleagues at Harvard.  I was particularly struck by the impressions of Professor Carol Steiker, who has known Kagan the longest – since they served as law clerks together at both the court of appeals and the Supreme Court – and has had hundreds of conversations with her in the time since.  While Professor Steiker doubts that Kagan would be an arch-liberal, she feels confident that Kagan would fit comfortably on the Court’s left and that Kagan’s capacity to bring together conflicting views would be an extraordinarily powerful force on the Court.

In general, I think that Greenwald is right in his prediction that Elena Kagan would not be as liberal as he is, including on questions of executive power, but that is a very far cry from the suggestion that she would move the Court to the right.  The reason the Supreme Court is about to become more conservative is that Justice Stevens is its most liberal member, its intellectual leader, and as the senior associate justice has a significant assignment power.  It’s not because Elena Kagan is going to be appointed.