Obama Selects Kagan for Supreme Court

President Obama has selected Elena Kagan, currently the US Solicitor General, to take the Supreme Court seat being vacated by Justice Stevens. The pundits who make their Sunday morning livings talking about such things pegged her as the front-runner some time ago. Her appointment should sail through confirmation hearings in the Senate, and the Republicans are unlikely to filibuster to stop it. The whole thing has been less entertaining than watching paint dry.

Precisely who sits on the Supreme Court does, sadly, matter because the Court often legislates where Congress is too cowardly to do so. And often when it does, it does so badly, e.g., Bush v Gore. The current court has a strange mix, four on the right, four on the left, and Anthony Kennedy in the middle. Justice Stevens, despite being nominated by Republican Gerald Ford, is on the left of the court. One may presume Ms. Kagan, as an Obama appointee, sits on the left as well. This means that there is no change, and it illustrates why the pundits have their knickers in a twist over nothing.

Supreme Court appointments are rare. Life-time terms for only nine seats makes turn over glacial in pace. In recent decades, a president on average has gotten to appoint just two. Because of their endurance, though, such appointments allow a president to influence American society indirectly long after he is out of office (indeed, long after he is dead, as Gerald Ford still influences America through Justice Stevens).

Rarer still are appointments that change the ideological make up of the Court. The appointment of a liberal to a seat being vacated by a conservative or vice versa has significant impact, but happens almost never. What is more likely is a shift in society that leaves the justices behind. Indeed, it is for that reason that Justice Stevens is seen as a liberal. He himself says he's a conservative, and the country has moved while he has not.

The Kagan appointment is not going to change the ideological composition of the Court, unless she turns out to be more conservative than Justice Stevens. Because her appointment more or less maintains the status quo, the Republicans will grill her harshly, and may vote against her, but they aren't going to try a scorched earth policy here. The stakes don't justify it.









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