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The Kagan Nomination: Not Like the Good Old Days

5 years ago
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On March 19, 1939, moments before he asked William O. Douglas to join the United States Supreme Court, President Franklin D. Roosevelt told the brilliant administrator: "I have a new job for you...It's a mean job, a dirty job, a thankless job. It's a job you'll detest. This job is something like being in jail. Tomorrow I am sending your name to the Senate as Louis Brandeis' successor." Less than one month later, Douglas was sworn onto the Court, where he would sit in judgment on the American scene for a remarkable 36 years and 209 days, a longevity record then and now.

The brief history of the Douglas nomination and confirmation to the United States Supreme Court -- Bruce Allen Murphy's good and epic 500-page biography of Douglas gives the matter less than three full pages -- doesn't just remind us how differently, how casually, they did things in the good old days. Douglas was told the news on a Sunday. A mere five days later, on March 24, 1939, at 2 o'clock on a Friday afternoon to boot, the Senate Judiciary Committee took up the public portion of the Douglas hearing and dispatched the matter in just five minutes. On April 17, 1939, less than one month after it began, Douglas was sworn in.
The old Douglas confirmation story also reminds us, more importantly perhaps, how different the nominees seem to be these days, how differently they view the job that awaits them, and how different they are viewed by the presidents who select them. We've traded efficiency and dignity for the benefit of exotic choices (like Douglas) in exchange for public posturing and lengthy Capitol Hill "campaigns" for safer selections (like Kagan). The Court now is not considered a detour to some higher office -- there is no higher office. And it's unlikely any president since Richard Nixon has dared to trash the job description of the Court in front of one of his own nominees.

We can understand easily why FDR would be so down on the Court. A few years earlier, courageous forces compelled by its institutional power had soundly thumped him and his transparently creepy Court-packing plan. And we can surely understand why FDR, the gossiper, would have been so negative about the Court in his comments about it to Douglas, who by then had established himself as a restless seeker of ever-widening power and glory (and who had himself sought the Brandeis seat). Perhaps FDR understood that Douglas might one day perceive his perch as a gilded cage. Or Perhaps the president had simply just finished a second martini on a Sunday afternoon at the White House.

But things don't happen that way anymore and it's not just because of the Internet and the rise of political action committees. Take, for example, the current nomination. President Barack Obama memorably made known earlier this year his beef with the Court's conservative majority over its controversial Citizens United ruling on campaign finance reform. And the Supreme Court nominee herself, the current solicitor general who so aptly described the sorry state of judicial nominations 15 years ago, needs no education about how political and cynical the Court is and can often appear to be. Yet no one reading this believes for a moment that the president told Kagan this past Sunday night, when informing her of his choice: It's going to feel like "being in jail."

No one talks that way about the Supreme Court anymore, even in jest. As the Court has become more professional -- as it has been populated by more former federal appeals court judges rather than by political cronies -- it has adeptly attracted the geekiest of the geekiest lovers of the law. Kagan said so on Monday (the law is "endlessly interesting," she said). Justice Sonia Sotomayor said as much during her own nomination contest last summer and so did the last two Republican appointees, Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr. It's a bipartisan, non-denominational and profound respect for the institution of law itself.

It's another chapter in the law of unintended consequences. By narrowing the political and ideological and jurisprudential scope of our Supreme Court nominees, by pushing them into what we loosely call "the center" of modern American politics, by forcing them away from controversial positions early in their careers, we haven't just weeded out unorthodoxy on the Court we've also weeded out those candidates who can't and haven't sustained, for decades, a judicial temperament in all things public. There hasn't been a nave or scoundrel on the Court in a half century, at least. This is not an accident or coincidence.

So while nominee Kagan may not have any experience as a judge, no one can reasonably look at her professional record and see anything but devotion to the law. She could have made a mint in private practice after her time with the Clinton administration. But she went on to become dean of the Harvard Law School instead. She could have become more of a partisan over the years, closer to the seats of power; instead, she became an advocate who keeps her own counsel. She paid her penance, in other words, in a way that only the converted could truly manage.

In the days of FDR and "Wild Bill" Douglas, a spot on the Court evidently was viewed as something to be tolerated. Today, it's universally viewed as something to be treasured. That's a good thing no matter what you happen to think of the current nominee.
Filed Under: Supreme Court, Elena Kagan

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