Tom Goldstein: The Ten Biggest Issues Elena Kagan Will Face
[Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted.]
Here is how I think the nomination process is likely to play out. I divide it into process and substance.
First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28. Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee. June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11. So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees.
Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail--note the contrast with the nearly two decades of decisions by Sonia Sotomayor--means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same committee as Solicitor General.
Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.
Also important will be the speed with which the administration produces documents--not only the nominee’s questionnaire to the Senate but also the documents it intends to produce from Kagan’s time in the Clinton administration. A genuine fight over materials could lead to a delay.
Two recent nominations provide guideposts. Justice Breyer was nominated on May 13, 1994, and his hearing commenced on July 12. Justice Sotomayor was nominated on May 26, 2009, and her hearing commenced on July 13. Thus, hearings on both of those nominations were held after the July 4 recess. But again, Kagan has a significantly less voluminous record than either Breyer or Sotomayor.
All in all, I expect that the hearings will be held in the week of June 28. That schedule creates some awkwardness: It is likely the same week that the Court will finish its term. The Court ends the term when it completes its decisions; there is no fixed date. But by tradition, the Court will sit at least one day that week, issuing its final (and often, most controversial) decisions. The week will also by definition include Justice Stevens’s final appearance on the bench.
To provide a little too much detail about the Court’s calendar: This year, the Court is very likely to sit on Monday, June 28, and it might sit on Wednesday the 30th; Thursday, July 1 is possible too, but unlikely. The last dates of the term for the past three years have been June 29 (2009), June 26 (2008), and June 28 (2007). But those dates are a little misleading because the fourth week of June in 2010 does not start until the 28th. More illuminating would be to say that the Court has finished the term for the past three years on the fifth Monday (2009), fourth Thursday (2008), and fourth Thursday (2007). If the Court can finish this term on the fourth Thursday, that will be June 24. But that is ambitious, and the following Monday (the 28th) is more likely.
If the hearings commence on June 28 and the Court finishes its term that same day, the conflict won’t be tremendous. The first day of the hearings is generally taken up mostly by the Senators’ opening statements. The Judiciary Committee could also start the proceedings that day at noon, rather than in the morning. In terms of the vote, expect that Kagan will be voted out of committee by a vote of fourteen to five, with all twelve Democrats and two Republicans in favor. The committee is composed of a lopsided twelve Democrats and seven Republicans. In the past five Supreme Court nominations, only one Senator of the nominating president’s party has voted against his nominee. All the Democrats other than Arlen Specter voted to confirm Kagan as solicitor general, and all are sure to vote to confirm her now. At the time that Specter voted against Kagan, he was a member of the Republican Party; subsequently having switched parties and now facing a very difficult primary election, it seems extremely likely he will endorse her.
That leaves the Republicans. Three Republicans on the committee voted to confirm Kagan as Solicitor General: Hatch, Kyl, and Coburn. Graham did not vote. Sessions, Grassley, and Cornyn voted against her nomination. Of this group, I expect that Hatch (who has shown significant deference to presidents in their nominations, notwithstanding that he did vote against Sotomayor) and Graham (who has tried to serve as a bridge between the parties in this area) will vote to confirm Kagan. But it would be extremely close and would depend on her performance at the hearings, as controversy over executive power and habeas corpus could cause both to vote against her.
I expect that Kyl and Coburn will conclude that a different standard applies to a Supreme Court Justice and ultimately vote against her, pointing to their votes for Kagan for solicitor general as evidence of the fact that they do not base their votes on purely partisan grounds....
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