In announcing his nomination yesterday of Elena Kagan for Justice Stevens’s seat on the U.S. Supreme Court, President Obama praised not only her achievements and intellect, but also her open-mindedness, and her “skill as a consensus-builder.” As dean of Harvard Law School, Kagan was known for bringing peace to a famously fractious faculty, and for opening the doors to a variety of political viewpoints. As solicitor general, she has spent the past year studying the Supreme Court, looking for ways to entice a majority to support the government’s position. This appears to be the training and temperament the President is looking for at this moment on the Supreme Court.
Some on the left are disappointed at this selection, believing that Elena Kagan is too moderate in her political views. No doubt they would have preferred a liberal firebrand in the spirit of a Justice Douglas or Marshall or Brennan, or even a Stevens. And a valid argument can be made that the Court could use a voice like that, to counter-balance a number of strong conservative voices. But with five fairly to very conservative justices on the Court already, adding an ideologically unbending liberal justice would probably only allow that justice to write a lot of stirring dissents. Expressing strong, principled positions makes people supporting those positions feel better, but those kinds of expressions don’t always persuade others of opposing views. President Obama, as I’ve said elsewhere, has the instincts of a mediator himself. For that, he has sometimes been criticized as unprincipled or too willing to compromise. It is not surprising in the least that he would choose someone who also has a reputation as a conciliator and consensus-builder, not just because that choice may feel more natural to him or safer politically, but also because he probably believes that someone with those skills will be better able to craft an opinion in a way that might garner a fifth vote to support a more moderate to liberal position.
With the retirement of the last liberal Republican on the Court, the Court may take on the appearance of a more partisan political body, its five Republicans and four Democrats forming cohesive blocs and dividing on ideological lines. There are two ways to approach such a situation fraught with inherent conflict. One is to let it happen: encourage all nine justices to act on principle, accept no compromise, and let the results be determined by whatever voting power the strong liberal and strong conservative positions can respectively command. That is the approach that views politics, or litigation, or history, as a dialectical contest between opposing viewpoints. Another approach is to encourage these justices to listen to one another and make an effort to find consensus. Obviously, the President believes the situation calls out for a mediator on the Court.
Can a justice who will in most cases side with the more liberal wing act as a “neutral” mediator in the way that people are accustomed to thinking of mediators? The answer is no, of course, in the sense that no member of the Court with their own vote and their own views on the legal issues can function as a true mediator who has no stake in the outcome. But a justice’s own inclinations should not prevent her from trying to form coalitions or look for common ground with her ideological opponents. In other words, you would not expect a sitting justice to be neutral in the sense that they have no pre-dispositions on the issues coming before the Court, but you might want to know whether they are capable of finding common ground with positions opposed to their own. (I’ll save for another post some thoughts on whether a mediator should be, or can be, a true “neutral.”) Some appellate judges or politicians are temperamentally inclined toward taking strong, “principled” stands in disregard of opposing views; others make strenuous efforts to seek out common ground. At times many of us would rather lose the fight than sacrifice our principles, while at other times we may be flexible enough to modify our own positions so as to accommodate competing interests. The latter quality is what enables disputes to be resolved by agreement as opposed to by contest. As an example, Justice Rehnquist, who remained very conservative throughout his career on the Supreme Court, started out as a strident and often a lone dissenter, but especially after he became chief, was much more inclined to look for ways to put together majorities in support of positions close to his own. (I recognize that the main reason that Justice Rehnquist found himself more often in the majority was that the entire Court shifted to the right, but Rehnquist still became more of a coalition-builder and less of an iconoclast over the years.) The President is obviously looking for a justice more in the mold of the later Rehnquist than the younger Rehnquist.
(illustration of Supreme Court argument from Greg Smith website)