Professor Kit Kinports looks at Kagan nomination
June 28, 2010
Confirmation hearings for the nomination of Elena Kagan to replace the soon-to-retire John Paul Stevens on the United States Supreme Court are scheduled to begin in the U.S. Senate today. Kit Kinports, Polisher Family Distinguished Faculty Scholar and professor of law at Penn State, said that while the politically charged times could factor into the hearings, Kagan's careful approach also could make the process smoother.
"The confirmation process has been called a kabuki dance as opposed to being a real look at the nominee," said Kinports, who clerked on the Supreme Court. "On the one hand, President Obama doesn't enjoy the level of popularity he did when Justice [Sonia] Sotomayor was named last year. We're closer to the midterm elections, and the political landscape has changed a little bit, which might suggest Elena Kagan will have a harder time than Justice Sotomayor. On the other hand, Kagan has been very careful. At least from what we know thus far, there aren’t a lot of controversial stances she has taken or things she has said."
If confirmed, Kagan will become the nation's 112th Supreme Court justice but only its fourth female justice. It will mark, however, a historic moment, as it will be the first time three women -- also including Ruth Bader Ginsburg and Sotomayor -- have served together on the Supreme Court.
"It certainly is historically significant," Kinports said. "There have never been more than two, and that wasn't until Justice Ginsburg was appointed in 1993 after Sandra Day O'Connor's appointment in 1981. A third of the justices will be female, but it's hard to know if that will affect the dynamic on the court or the votes in particular cases. Certainly, the court will look a little different. Whether that will translate to a different atmosphere or different outcomes is something we don't know and might disagree about even once the data come trickling in."
In a greater sense, Kinports said, a judge's own world view often shapes his or her decisions when ruling on cases. So while gender may play a part in that, so too can personal political views and experiences.
"I tend to be a legal realist, and I don't think there is one right answer to every legal question, especially when you are talking about the big issues the Supreme Court has to address," Kinports explained. "I think one's vote in a lot of the cases the Supreme Court hears can't help but be influenced by politics in part, but also by one's personal experience, one's sense of how the world works. Deciding a legal case is not like solving a math equation. It may well be influenced by one's views and perspective."
Kinports clerked on the Supreme Court under Justice Harry Blackmun as well as for the same Washington, D.C., Circuit Court of Appeals judge as Kagan, Judge Abner Mivka. Though she does not know Kagan, Kinports said Kagan seems to be persuasive and already appears to have developed a good relationship with the current justices during her tenure as solicitor general since 2009.
"From what I've read about her, she's someone who's not known to be shy about taking on the orthodoxy," she added. "President Clinton was recently quoted talking about her early days as associate White House counsel and how she disagreed with the majority sentiment in the room on an issue and ultimately was very persuasive. I'm not sure she'll be shy about articulating her views. She has appeared as solicitor general before the people who would become her colleagues, and from what I understand there was a good rapport between her and the justices. It's hard to know how any of that would translate into the dynamic on the court. Since a lot of what the court does is shrouded in secrecy, we may never know that fully."
A tough act to follow
Whatever happens with Kagan, Kinports, whose clerkship on the Supreme Court occurred during Stevens' tenure, said Stevens, who is retiring after nearly 35 years on the Supreme Court and is its third-longest-serving justice, will be difficult to replace.
"He was one of the longest-serving justices in the history of the Supreme Court, and when you lose someone with that kind of institutional memory that's a resource and wealth of experience that is hard to replace," she noted.
“He was an independent thinker who was appointed not necessarily for his political views but because President Ford said he he was the best legal mind hecould find. I don't think Justice Stevens came to the court with a grand ideology, but he looked carefully at the facts of each case and was a meticulous jurist. He has a keen attention to detail and was very interested in the details and nuances of the cases.
"He was also a real gentleman. There was a real decency, humility and civility about Justice Stevens that will be missed."
Reprinted with permission from Penn State Live.