Kagan confirmation a ratification of the blank slate strategy for SCOTUS nominees

by: Chris Bowers

Mon Jun 28, 2010 at 14:30


If you had forgotten all about Elena Kagan's nomination to the Supreme Court, and that her confirmation hearings are scheduled to begin today, then you are not alone.  The Kagan nomination fight has really flown under the radar.  According to Pew, the week Kagan was nominated, all of 5% of the country said news of her nomination was the story they followed most closely (tied for third with news of Iraq).  Since that time, her nomination never cracked the top five news stories, or was the top story for more than 1% of Americans, again.

All of this is good for the White House, since Kagan's confirmation numbers are less than stellar.  As I analyzed four weeks ago:

So far, Gallup, Fox, Pew, and Rasmussen have released polling on whether the public thinks Elana Kagan should be confirmed or not.  Compared to polling from these same four outlets at the same point in the Alito and Sotomayor confirmation process, Kagan lags behind (see Miers, Alito, Sotomayor, and Kagan for the Rasmussen polls, and here for all other polls).

Sotomayor: +18.2% (mid-June 2009)
48.0%--29.8%

Alito: +12.3% (mid-December 2005)
37.3%--25.0%

Kagan: +9.0%
37.8%--28.8%

Miers: +1.5 (late-October 2005)
35.5%--34.0%

Kagan has a net positive "confirm" of 9%.  While that puts her well clear of the failed nomination of Harriet Miers, that is half of what Sonia Sotomayor had in mid-June of 2009 according to these four polling firms, and even less than Samuel Alito's numbers in mid-December of 2005.

Since that time, Kagan has continued to receive anemic numbers from CNN (44%--39%), Pew (33%--25%) and NBC (29%--23%).  Even without a clear line of attack on Kagan, these are tricky numbers for a Supreme Court nominee.  There was one wildly favorable poll for Kagan, from ABC / WaPo in early June.  In that poll, Kagan's confirmation numbers were 58%-24% in favor. The difference between that survey and the others which have been conducted is that she was referred to as "U.S. Solicitor General Elena Kagan" rather than just "Solicitor Elena Kagan" or "Elena Kagan."

Despite these (generally) low poll numbers, Kagan's confirmation appears to be a certainty.  The ranking Republican on the Judiciary committee, Orrin Hatch, waved the white flag this morning:

Sen. Orrin Hatch (R-Utah), the second-ranking Republican on the committee who has at times served as its chairman, downplayed the likelihood of Republicans looking to block Kagan's nomination, as the Judiciary panel begins hearings on her this morning.

"I don't think anyone's going to do that," Hatch said during an appearance on MSNBC when asked if a filibuster was in order. "After all, there's 59 Democrats, and I suspect there'll be a few Republicans who will vote for her regardless."

That Republicans are basically giving up any attempt to defeat Kagan, despite her low poll numbers, is a ratification of the blank slate strategy for Supreme Court nominees.  A blank slate is a boring news story, and so there was little coverage of her over the past six weeks.  A blank slate also doesn't have scandals or skeletons, which has prevented Republicans from adopting a coherent or effective line of attack against her.  It is also a replication of what the Bush White House did with John Roberts, so the blank slate strategy now has the bipartisan seal of approval.

At the end of a very hot June, with political attention still turned elsewhere, and with Kagan effectively pulling off a blank slate strategy her whole life, her confirmation appears certain.  More worryingly, it also seems certain that any future President will be able to replicate this blank slate strategy with any nominee.  If there is a way to defeat it, no one appears to have figured it out yet.

Chris Bowers :: Kagan confirmation a ratification of the blank slate strategy for SCOTUS nominees

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Looking at this another way (4.00 / 1)
Any progressive with a long-term dream goal of becoming a Supreme Court justice should aspire to be a blank slate.  A lack of blank slate closet progressives will hurt the progressive cause.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both

Not really news... (0.00 / 0)
Another way to look at this is that 25%-30% of Americans will oppose almost any nominee and the public doesn't really engage unless there is a scandal or a demographics issue.

The good news is that Kagan's gender isn't really engaging voters, nor is the speculation about her orientation.  We don't perceive Kagan as being likely to radically change the Court.

My job is not to represent Washington to you, but to represent you to Washington- Obama
Philly for Obama


So it is all about sex, except in July when no one gives a shit. (0.00 / 0)

I'll buy that.

But it would be a nice if she were a lesbian, that she came out of the closet just after her nomination is approved by the Senate. Why? I can't see her or any judge recusing themselves on a case involved sex discrimination or orientation. No prior judge has and I suspect that no future judge will.


[ Parent ]
This issue is dead. Kagan says that she isn't a lesbian, (0.00 / 0)
and why shouldn't we take her at her word? Because she is an older, unmarried woman? The idea that a SCOTUS nominee would hide her sexuality and later come out of the closet is disgusting, and such an act should disqualify anyone from the position.

I don't like Kagan. Cenk Ughar had the best column on this subject, entitled, "The Problem with Elena Kagan is Barak Obama." Her nomination is a symptom of what is wrong with the political and public spheres. If the left admits the idea that queerness and progressive political views should be hidden, we have already lost.  


[ Parent ]
It would have been a courageous act for Kagan to admit her sexuality if.... (0.00 / 0)
And it would hve been courageous if Obama supported her regardless. In such a case, Kagan might have been a more important candidate for the SC than Wood, an established liberal judge.

Washington Post:

"False charges," White House spokesman Ben LaBolt said after a conservative blogger wrote last month on a CBS News Web site that Kagan would be the "first openly gay justice." LaBolt's description of the rumor as "charges" was itself awkward, coming from a pro-gay-rights Democratic administration. His statement almost begged for a Seinfeld-esque not-that-there's-anything-wrong-with-that qualifier.

Why the White House chose to engage on this question at all is telling of the currency and the potency of the innuendo. In an age when the Internet sometimes ignites the burners of the mainstream media, "a rumor unaddressed becomes fact," said Anita Dunn, a former White House communications director who has reenlisted to advise on the Kagan nomination.

Administration officials asked Kagan directly about her sexual orientation when she was being vetted for her post as solicitor general, Dunn said in response to a question that she protested was inappropriate. But she insisted that it was not a relevant factor in determining who was named to that job or this one. "When there's a gay nominee, there's a gay nominee, which will be a good thing, if they're qualified and should be on the court," Dunn said.

http://www.washingtonpost.com/...

It is an irrelevant issue, but it would have put the Republicans on notice.


[ Parent ]
Ya; know. (0.00 / 0)
This is not really a denial. Kagan when asked during the Solicitor General interview, did not actually deny that she was a lesbian, instead protested that the question was inappropriate.

My hope is that if she is, and that she will come out after her nomination. A black president, and now a gay Supreme Court Justice.

Democrats are moving forward, in spite of thirty years of hell.


[ Parent ]
I've read other accounts that tell of a voluntary denial (0.00 / 0)
 early in the interview. In any case, the ambiguity that you point to supports my view. There is nothing wrong with being a lesbian. It is perfectly normal, and we know that the disadvantages given to them are unjust.

If a SCOTUS nominee is willing to give authority to clearly unjust laws and discriminatory practices by concealing sexuality, there is a fundamental hypocrisy that no SC Justice should exhibit, under-represented group be damned. This is Gates' argument against DADT, the one I find the most convincing. The policy forces individuals to lie and is therefore corrupting.  


[ Parent ]
Only 16% know the name of the nominee.. (0.00 / 0)
..yet give the Judicial branch high marks and the Executive the lowest, according to some right leaning pollster dug up by MSNBC.

This nomination isn't 'news' because we know two things: (1), the Dems will put through anyone and (2), Obama won't nominate anyone who'll rock the shit out of the Roberts boat.
He saves those appointments to use against the Afghans - and the Progressives.

That new Second Amendment decision shouldn't be a surprise.  Sotomayor, in Maloney v. Rice, ruled the same way.
And Kagan, regardless of her sex, is a hardliner destined to back every Bush/Obama/Executive related case.

You're right. Kagan won't change a thing, unfortunatley.


Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.


[ Parent ]
Gosh! (4.00 / 3)
More worryingly, it also seems certain that any future President will be able to replicate this blank slate strategy with any nominee.  If there is a way to defeat it, no one appears to have figured it out yet.

"Who the fuck is this and why should we be bound by what they think?"

That sounds like a pretty decent narrative line to me.  About 20 years too late or so.  But, still pretty decent.

But, then, I'm a reporter who doesn't work for the Washington Post.  So I'm naturally nosey and I get paid for it.

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3


Yes, that is a pretty decent narrative line. (4.00 / 2)
And another is that silence speaks volumes, and that silence from those in authority are political acts. Greenwald noted that while others spoke out against Bush's transgressions, Kagan was relatively silent. Political cowardice is rewarded--Obama shut out those who spoke against the Iraq war and killed his own nomination of Dawn Johnsen.

[ Parent ]
"is a political act" (0.00 / 0)


[ Parent ]
Under the circumstances, of public disinterest.... (0.00 / 0)
a better choice would have been Diane Wood, an established liberal judge.

Be that as it may, and that Kagan was chosen, I can't see the Senate conservatives blocking her appointment. Woods may have had a bigger fight, but this is July and who cares about politics this time of the year?

Let's hope that Kagan doesn't get funny some time in the future. Given recent SC decisions, we would be in serious trouble if she were to turn, as some nominees have done in the past.


"Survivor" (4.00 / 1)
It seems like the judicial confirmation process has now replicated the strategy for winning on the "Survivor" reality show: don't stand out, for excellence or any other reason. Just make sure no one can ever pin you down. Wouldn't the winners of "Survivor" make a great set of judges? That's what we get this way.

ec=-8.50 soc=-8.41   (3,967 Watts)

And Here You Thought It Was 1 vs. 100! (0.00 / 0)
It's so damn hard to know which show you're really in!

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

[ Parent ]
There is nothing strange (0.00 / 0)
about these poll numbers - the public is largely irrelevant to these battles. When elites decide to fight over nominations, they can mobilize the public, given the right circumstances (for example, the liberal establishment mobilizing the public against Bork). But just like legislation, public opinion is not generally a cause of success or failure for a nomination.

That Republicans are basically giving up any attempt to defeat Kagan, despite her low poll numbers, is a ratification of the blank slate strategy for Supreme Court nominees.

I don't get this. You are pointing to a strategy used in relation to a handful of nominees who were successful getting to the Court, but so have been just about everyone else.  Leaving aside Miers (a fluke) no one has been rejected since the mid-80s - and that time Reagan was trying to replace a moderate conservative swing justice with a right wing ideologue.  Before that, you have to go back to Nixon.  

Just because official Washington has convinced itself that so-called stealth nominees are necessary, doesn't make it so.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


So then why nominate the stealth candidate par excellence? (0.00 / 0)
It is not only that she has been wishy-washy, but her absolute devotion to the institution is a quality that one would look for in a stealth candidate. It goes without saying that a court filled with stealth candidates would not be good for the rest of us.

What is most distressing about Kagan's nomination is that her support for institutional structure bleeds over into real moral questions. During her tenure as Dean, 22 out of 23 tenure-track hires were white, and out of the 22, only 7 were woman. She lives in a world where power resides in white males, and she helps to continue the tradition. She was appointed by Larry Summers despite not really deserving the job. We know how progressive Summers is about gender, right?

Sorry to get off-topic here. Kagan is not just a blank slate. She is a bad nominee.  


[ Parent ]
What's with the name calling?? (0.00 / 0)
'elites'. 'liberal establishment'.

One of chief fighters is Sessions, a Republican from Alabama - is he one of the "elite" too?

And your apparent defense of Bork is stunning. So all of those who opposed Bork's beliefs that the Executive branch needed more power, not less, and that Southern states shouldn't have to abide by our civil rights laws are part of the "liberal establishment."  Most Republicans and Libertarians don't agree with Bork either.

That leaves only one small minority ..?


Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.


[ Parent ]
I'm afraid you have fundamentally misread my comment. (0.00 / 0)
I wasn't calling anyone names. By 'liberal establishment,' I'm talking among the ACLU, People for American Way, etc.  I'm talking about the major liberal groups associated, along with key officials in the Democratic Party. There is a conservative establishment too (Heritage, Federalist Society, etc.)

By 'elites,' I'm referring to political and legal elites, both liberal and conservative. I meant the powerful, as opposed to  voters. Yes, Senator Sessions is an elite - all Senators are. But he does not seem to have the full backing of the conservative establishment, which is why his challenge will likely go nowhere. Nothing I wrote suggested there are only liberal elites.

Yes, liberals led the fight against Bork - they weren't the only ones, but they lead it. That's not surprising because they would disagree with him (a conservative) more than others would.

My comment included no defense of Bork, apparent or otherwise. My point is simply that then, liberal organized interests and Democratic Senators rallied the public to successfully defeat a nominee, but most nominees sail through regardless of what the public thinks. That's why I question crediting the stealth strategy for achieving wins when most people win. Public preferences do not determine these battles, elite preferences do.  (For the record, that is merely a description - I'm not saying it's a good thing.)

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


[ Parent ]
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