Don't Judge Me!

The Washington Post is always a source of entertainment.  Their coverage this morning of last night's leaked announcement that Press Secretary Robert Gibbs would announce that President Obama would announce Elena Kagan as his nominee to replace Justice Stevens is typical in its fawning nature, but achieves spectacular new heights in the abuse of our language (emphasis added):

And she's never been a judge, which gives her a quality that Obama is known to have been seeking: someone to bring a different sensibility to a court that's currently dominated by judges.

That particular lack of experience also means she does not have a long record of controversial rulings that could provide fodder for the presidents [sic] political opponents.

Imagine that, judges in our courts!  Who would have thought?  In all seriousness though, the next paragraph is more telling.  Obama faces a much more hostile Senate than last year and his party has sunk to the lowest advantage in voter identification it has had against the GOP in five years.  Going into elections this fall, he could not afford to nominate a doctrinaire liberal with an extensive history that would lead to a polarizing debate on social issues.

Strangely, the President has come under attack from many liberals for not making an ideologically "safer" choice.  Commentators such as Greenwald at Salon.com suggest that, if confirmed, Kagan would actually move the court to the right.  Conservatives may hope that she becomes the Democrats' Souter--a blank slate who soon diverges from the liberal cause--but an academic study by Lee Epstein, Andrew D. Martin, Kevin M. Quinn and Jeffrey A. Segal shows that these hopes are likely in vain.

Of the twenty-six Justices who served on the Court for ten or more terms since 1937, all but four exhibit ideological drift over the course of their tenures.  Twelve moved to the left, seven to the right, and three in more exotic ways.

The study concludes that Supreme Court Justices are likely to change ideologically--mostly to the left--and that presidents and the Senate should focus more on the qualifications of the nominee than his or her ideology.  On this point, Kagan is an eminently qualified legal scholar, but it remains to be seen whether her lack of judicial experience will be a serious handicap if, as seems likely, she is confirmed.

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