One of the weirder qualities that has been attributed to Supreme Court nominee Elena Kagan -- and said to be a selling point to her nomination -- is the widespread belief that she somehow will be able to reliably "persuade" perennial swing-vote Justice Anthony Kennedy to swing in the direction of the more liberal court foursome. I have no idea how that was supposed to work, at all. Is Kagan some kind of mentalist, possessed of the rather boutique power to sway the mind of Anthony Kennedy, specifically?
It's fair to question the logic of this, so here's Scott Lemieux, at TAPPED, doing just that:
Is there any evidence whatsoever that Kennedy is susceptible to lobbying for votes, subtle or otherwise? A fairly large literature has emerged about the internal workings of the Rehnquist Court, and I've read a painfully high percentage of it, but I'm not aware of any documented case in which the influence of another justice has caused Kennedy to switch his views.
The most prominent case in which he switched his position after the conference vote -- the school prayer case Lee v. Weisman -- didn't seem to have anything to do with personal dynamics on the Court, and by all of the accounts I'm aware of William Brennan's attempts to influence Kennedy were a dismal failure. I'm happy to be corrected if anyone has an example, but I don't know of any actual evidence that brown-nosing can win Kennedy's vote. I think part of the problem -- which was also true of Sandra Day O'Connor -- is that some Court observers conflate moderation with indecisiveness. Just because a justice's votes are less predictable than some of their colleagues' doesn't mean that they are to be subject to manipulation.
Naturally, given the likelihood of Kagan's confirmation, we'll have a chance to observe Kagan's ability to entrance Anthony Kennedy in near real time. Nevertheless, Lemieux's take on the matter seems pretty sensible.
As an interesting side-note to all of this, days before President Barack Obama officially announced his pick, Slate's Dahlia Lithwick was pointing out that Justice Diane Wood was the more celebrated persuader. Even still, she took a dim view of the whole notion, calling it an "absurd" exercise in "social-engineering":
If it's true that only Justice Kennedy is in play, and then only some of the time, the real social-engineering question for Obama becomes so specific as to be almost absurd: Which of his shortlisters might be most likely to win over a Kennedy in a close case? But if the entire calculus of this Supreme Court nomination is to be reduced to a single question, let's at least agree that attempts to find the likeliest constitutional sherpa for the court's last swing voter should not be that question. Who knows what type of person might sway Justice Kennedy? William Shakespeare? His wife? Possessing the power to persuade a very complicated 74-year-old man is not the stuff of which epic constitutional careers are made.
And finally, but perhaps most critically, reducing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision. The selection of a new Supreme Court justice is too important to reduce to politics, and the debate over judicial ideology has to be about more than just winning.
RELATED:
Is Kennedy Easily Manipulated? [TAPPED]
The Limits of Influence [Slate]
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