When selecting a Supreme Court nominee, White House officials essentially plot the prospects out on a graph. On the x-axis, you measure how closely the nominee fits with what you want in a justice; on the y-axis, you measure how easily the nominee could be confirmed.
If you’re a contender, the optimal point is that golden upper right quadrant. You have the qualities and intellect that put you in the judicial rock star range, and your confirmation would be relatively straightforward.
In the Bush White House, that calculus is literally how Sam Alito edged out the more controversial Mike Luttig, once considered the front-runner, to replace Justice O'Connor.
Alito scored high on the “judicial qualities” axis, but unlike Luttig, sources explained to me, he also measured more strongly on the “ease of confirmation.” Alito wasn’t a lightning rod like Luttig, and he had a boatload of liberal law clerks and judicial colleagues enthusiastically supporting his nomination.
In other words, as one official told me, they could get everything they were looking for with Alito—-without the political firestorm a Luttig nomination would spark. Alito was in optimal spot on the graph.
A comparable calculus for President Obama’s top contenders produces some interesting results and an emerging front-runner. Obviously, there are other variables: the meeting with the President is huge and can be decisive. Then there the results of the exhaustive vetting process and whether the President is assuming he’ll get another nomination.
But based on what we know now, here’s a look at where the top contenders--which sources tell me are Elena Kagan, Diane Wood and Sonia Sotomayor—could fall on the graph.
The 49-year-old Kagan scores as high as or higher than any of the other prospects on the “judicial qualities” scale. She is young and unquestionably brilliant—a woman with a keen analytical mind who can map out complex legal problems and see all the different parts. She’s a clear and persuasive writer, and she has a proven track record of consensus-building at Harvard Law School, where she was dean.
She also measures very well on the “ease of confirmation” axis, a factor that shouldn’t be underestimated. Although Obama has a solid Democratic majority in the Senate, political capital is finite, and this is a White House with an ambitious agenda—including heath care reform.
Kagen, unlike the other nominees, has genuine conservative support. She gets high marks from leading legal scholars (and judges) on the Right for bringing top conservative scholars to Harvard when she was dean. At her recent confirmation hearing for Solicitor General, leading conservative lawyers Ted Olson, Ken Starr, Paul Cappuccio, Jack Goldsmith, Paul Clement and Miguel Estrada wrote in support.
Now clearly a Supreme Court nomination is a different, and conservatives certainly don’t expect Kagan to be anything but a solid liberal on social issues. But as one told me, she’d get support nonetheless because she’s perceived as being more judicious and reasonable than other contenders on issues of executive power.
Also on the “ease of confirmation” is the nominee’s demeanor, and Kagan scores high here, too. She is an enthusiastic and engaging teacher of the law (as I personally witnessed in two of her classes 16 years ago at the University of Chicago Law School). She has this almost exuberant quality about her, which would serve her well in her private meetings with the Senators, not to mention before the nation in televised confirmation hearings.
In her recent confirmation hearings for Solicitor General, for example, Senators grilled about memos she wrote 22 years ago as a law clerk to Thurgood Marshall. She disarmed the senators in her responses.
“You know, I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views," she said.
At one point, Sen. Arlen Specter asked her about a memo analyzing a federal law authorizing federal funds for religious organizations to discourage teen pregnancy. Specter quoted Kagan’s memo: “It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching."
At the hearing, Kagan said she had only recently seen the memo: "And I looked at it, and I thought that is the dumbest thing I've ever heard."
That kind of comment takes some confidence. And Specter laughed.
Demeanor is not insignificant: Officials in the Bush White House insist to this day that the reserved and unassuming Harriet Miers would be on the Supreme Court right now, regardless of what you think about her legal skills, if her personality instead had been more confident and gregarious.
The other current contender who also plots high on the “judicial qualities” axis is federal appeals court Judge Diane Wood. She’s highly regarded for her analytical skills and her careful opinion writing. She’s a leading expert on antitrust law and international trade. She’s proven she can go head-to-head with brilliant conservative colleagues like Easterbrook and Posner, as I explained last week.
But then there’s this: Wood is nearly a decade older than Kagan. And, like Kagan, she doesn’t bring racial diversity.
On the y-axis, Wood also doesn’t fare quite as well as Kagan, either. She doesn’t have the conservative legal luminaries behind her, and she has some controversial opinions for conservatives to mine, as any experienced federal appeals court judge would.
Kagan doesn’t have a stockpile of opinions, ironically, for the same reason John Roberts didn’t when Bush tapped him for the Court in 2005. Kagan’s nomination to the D.C.-based federal appeals court stalled in the Senate in the waning days of the Clinton Administration. Roberts’ nomination to that same appeals court had stalled in the Senate eight years earlier, in the waning days of the George H.W. Bush administration.
As a result, what once was a disappointment for both Roberts and Kagan became a plus when it came time for Supreme Court nominations. They both lacked what the other top contenders had compiled: a lengthy appellate court record, dotted with a controversial opinions on contentious issues like abortion and affirmative action.
Obama’s third top prospect, Sonia Sotomayor, also would appear to plot out well on “judicial qualities” because she would bring racial diversity as the first Hispanic nominee—an almost irresistible quality for a President seeing to reach out to an important and growing constituency.
But Sotomayor falters somewhat on the x-axis. Already the prospect of her nomination has set off a firestorm on the Left, which is engaged in a heated debate over whether she has the judicial heft and collegiality to make an impact on the Court. (The lawyers’ reviews about her in the current Almanac of the Federal Judiciary are harsh—and striking when compared to the more favorable reviews for other judges.)
Her supporters have moved to aggressively and publicly counter negative stories, with several excoriating the writers who quoted anonymous sources and raised questions about her performance as an appeals court judge. One writer, the respected left-leaning Jeffrey Rosen, has been called “racist” for a piece that suggested she was mediocre and abrasive. Rosen, in turn, has defended his piece.
Bottom line: Sotamayor, despite her compelling life story, has some problems on the x-axis, and those problems could bleed over to the y-axis of “ease of confirmability.”
You can plot out the other contenders said to be in the running on the graph, too. Janet Napolitano falters on the “judicial qualities” axis because she could have trouble consensus-building on the Court, which is precisely why you would tap a politician in the first place. She advised Anita Hill during the bitter confirmation battle for Clarence Thomas. Her nomination could revisit those shameful proceedings (which were chaired by Joe Biden, by the way), making her own confirmation hearing messy—a problem on the y-axis.
Cass Sunstein and Merrick Garland also stumble as white men (plus, Garland is a moderate—conservatives would embrace him, but unlike Kagan, he would disappoint liberals). Gov. Jennifer Granholm has issues on both x and y axis, partly because of her background and the political controversies in her state.
Obviously, these calculations can change. We don’t know what, if anything, the vetting process will reveal. We don’t know how President Obama—who is uniquely qualified among past presidents to understand this process—will factor the prospect of a second nomination in his decision-making.
But my sources close to the process say there is growing support inside the White House for Kagan, especially on the legal team. Plotted out on the graph, right now, Kagan makes sense.