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U.S. Supreme Court: The Highest Court of the Land - Scene Setter Prior to Confirmation Hearings for Elena Kagan

FPC Briefing
Melvin I. Urofsky
Professor of Law and Public Policy
Foreign Press Center
Washington, DC
June 25, 2010

Date: 06/25/2010 Location: Washington, DC Description: Melvin I. Urofsky, Professor of Law & Public Policy, Briefing at the Washington FPC on the U.S. Supreme Court and the Upcoming Confirmation Hearings for Elena Kagan. - State Dept Image


11:00 A.M. EDT

MODERATOR: Welcome to the Washington Foreign Press Center. Today we have with us Professor Urofsky who is going to brief us on the Supreme Court and the upcoming confirmation hearings for Elena Kagan on Monday. Professor Urofsky.

PROFESSOR UROFSKY: Good morning. What I would like to do is walk you through the process first, and then I’ll be glad to answer any specific questions you may have. The Constitution provides that the President shall nominate members of the Federal Judiciary but the Senate confirms them -- just the Senate, not the House of Representatives.

Appointments to the Supreme Court are the most important appointments a president can make, because unlike members of the administration, members of the executive, even members of the independent boards, a judge has life tenure and can only be removed from this behavior – in the entire history of the Supreme Court no justice has been removed, although one or two have resigned. And even in the lower federal courts, there’s only been a handful of judges who have been impeached and convicted.

Judges in good health can serve 20, 25, 30 years or more. The record is held by William O. Douglas who was appointed by Franklin Roosevelt when he was in his forties and served 36 years. The man who is stepping down now, John Paul Stevens, has served over 30 years. And, in fact, those of us who follow the court were sort of betting a year or so ago that he wasn’t going to do this -- that he was going to try to A, tie Douglas’s record and B, tie Oliver Wendell Holmes’s record as the oldest man ever to sit on the court.
It is still not clear why he is stepping since he seems to be in good health and his mind still seems fine, but he has had his reasons – he’s not sharing them.

So once you put someone on the court, they are there. Thus someone like Franklin Roosevelt who appointed eight members of the court really influenced that court long after he was dead. Half of the members of the Warren court who decided Brown vs. Board of Education were Roosevelt appointees. Ronald Reagan made a number of appointments and his people are influencing the court now.

Complicating matters this year is the fact that there’s an election. And so Republican members of the Senate Judiciary Committee, even though they understand that it would be almost impossible to derail Kagan’s nomination, are going to try to make points with their base. And there’s a certain irony of this because the points they are going to try to make -- and there’s a certain ritual to this.

When the hearings start, every member of the Senate Judiciary Committee gets to make a little speech, and the nominee essentially has to sit there and listen to them. And these speeches serve two purposes: it is the only time that the Senate can talk to the Supreme Court -- that they can tell the Supreme Court through the nomination process we are concerned about this, we are worried about this, we don’t like this, or we do like that. And you can be sure that the other members of the court are listening just to see what the mood of the Senate is.

The second thing they’re doing is they’re making points with their electoral base back home. Now there’s a certain irony because the Republicans will make a big deal of what they call, judicial restraint. That is for judges not to interpose their own views, but to follow the law very strictly just to interpret the constitution, not to be activists. That is, not to reach out to get issues that they might want to deal with. And the irony on this is that the most activist members of the current Supreme Court are all Republican nominees. Samuel Alito, Antonin Scalia, Chief Justice Roberts, Justice Thomas, these are activists. These are the people who reached out well-beyond the necessary case last fall in a case called “Citizens United” to deal with issues that had not even come up before the court so that the most activist judges on the court now are all Republican nominees. Yet it will be the Republican Senators who will make the biggest noise about judicial restraint.

After they are finished, Solicitor General Kagan, or Professor Kagan, or Dean Kagan, or however they want to address her, will get to make a statement and then she will be subject to questioning. When she is finished, the committee will listen to others who may have asked to speak or have been asked to speak either for or against her. My guess is that the hearings will not last more than four or five days. When that is done, the committee will then vote on whether or not to recommend her confirmation to the full Senate. And it will then go to the full Senate where there will be another vote.

Now, theoretically, the Republicans could mount a filibuster, but my guess is they will not. That is, they will try to talk the thing to death. They won’t be able to do that because, first of all, she’s a woman and they do not want to alienate the female vote. For the same reason that they couldn’t do very much about Sonia Sotomayor last year because it was a double-whammy as far as they were concerned. They couldn’t alienate women and they couldn’t alienate Hispanics. So they got up there and they made their set speeches.

The problem that I find with the whole hearing is it’s become so ritualized that the people who are appointed don’t really tell you very much. And this is interesting because Kagan, a number of years back, reviewed a book about the nomination in which she said that judicial nominees really ought to answer questions. They ought to tell the Senate what they think. To be honest about it, to talk about, “I believe in privacy, I don’t believe in privacy, I support abortion, I don’t support abortion.” When she came up for her confirmation hearings as solicitor general, she backpacked – backtracked on that one quite a bit and said, “Well, I’ve learned a lot since then.” So we’re not really going to find out the one thing that most people really would like to know about and that is, what is her judicial philosophy? Does she believe in a right to privacy? How does she think that the Constitution ought to be interpreted?

One of these years, and I hope I live long enough to see it, there’s going to be some nominee to the Supreme Court who’s going to say, “Go ahead, ask me anything you want.” Now, the last one who did that, however, was Robert Bork and he was defeated. And that has been sort of a cautionary tale.

So right now, people – there are two things they can do. One is fudge, which they do a lot. Sometimes I think they verge on outright lying. When Clarence Thomas came before the committee and they asked him if he had ever thought about – what he thought about abortion and he said he never thought about it. And it’s hard to believe that anybody in the United States, especially someone who is coming up to be a judge, has never thought about abortion as a legal issue.

There is another way that they avoid answering questions which is more legitimate. And that is if an issue is coming up or could come up before the court that they would have to rule on. Just a year or so ago, Justice Scalia had to recuse himself – that is, take himself out of a case because he had given a talk in which he had essentially said what he thought about the case. This was involving the flag salute, so he – the pledge of allegiance. So he took himself out of it. You don’t want people going on the court saying, “Well, if this came up, I would vote this way and if that came up, I would vote the other way.” That is legitimate and even hostile Senators realize that. But it would be nice if somebody would ask, “What is your judicial philosophy?” and we got something other than a canned remark. I don’t think there are any fireworks. Usually, by this time in the process, if there is a smoking gun anyplace, it has come up. There is no smoking gun.

Some Republicans, for some reason or another, tried to claim that Dean Kagan was a lesbian. Not a good move. Among other things, homosexuals also vote. The Republicans have to be very careful here because their base keeps getting smaller and smaller. The White House immediately shot that down as did a number of her girlhood friends. And what had came out was what most successful and professional women recognize and attested to in various interviews: if you are a very, very smart woman, as she is, it’s sometimes hard to get a date. (Laughter.) And so that issue seems quiet now.

The only thing, excuse me, that some Senators will no doubt raise is the question of allowing the military to recruit at Harvard. And here, I think, somebody will make a little bit of noise, but they won’t be able to do very much about it. Here is what happened. The Army adopted a policy that essentially said they would not recruit gay or lesbian people into the military at whatever level. And they do recruit in the law schools for the judge adjutant judge general’s office, that is, the legal branch of the Army. The American Association of Law Schools had adopted a policy that said, “We will not allow recruiters to come to us who are prejudiced against women, people of color, people of different sexual orientation. The entire American Association of Law Schools, of which Harvard is a member, adopted this policy and Dean Kagan really had very little choice as dean of Harvard Law School but to follow this policy.

The Supreme Court – however, it should be noted that during this time she told the military that they were free to set up an off-campus recruitment place. Now, they could go into a hotel, rent a suite, and that there would be no problem and that she would announce that they were there and that if any members of the Harvard student body wanted to go there, they were free to go. In other words, they would not stop students from going to meet with military recruiters, but the military recruiters themselves could not be on the Harvard Law School campus.

The Supreme Court later struck this – there was a provision in a federal bill that said that any school that refuses to let military recruiters on would lose any federal funding coming that way. And after the Supreme Court upheld that provision, Dean Kagan said, “Then we will let military recruiters on here. That’s the law. The Supreme Court has spoken.” There will be some conservatives who will accuse her of being anti-military. I don’t think that’s going to hold up very well at all.

Another thing they’re going to try to raise is the fact that she has not been a judge, that she is being appointed directly to the court. Actually, up until 40 years ago, a majority of the members of the U.S. Supreme Court had not served as judges before they went onto the court. The list of famous well-known judges who had no real prior federal judicial experience would include Chief Justices John Marshall and Roger Taney in the 19th century. It would include Louis Brandeis. It would include Charles Evans Hughes. It would include Harlan Fiske Stone, Hugo Black, Earl Warren, William Rehnquist, Lewis Powell. Rehnquist and Powell were the last people who were named to the court who had not been federal judges or state judges before. A lot of people – of commentators have felt that it’s long-past time to abandon that rule.

Alan Dershowitz of Harvard before Kagan was even nominated had written in a piece that one of the problems with the current Supreme Court is that there are no lawyers on it. That is, people – not that there are no lawyers who have law degrees, but people who have actually practiced law and have extensive law experience. Somebody like John Roberts did have experience as an appellate judge, but that’s a lot different than running a regular law office where all sorts of issues come before you.

So although I’m a historian and I do not like to prophesy – I used to use that as a good excuse all the years I was teaching so I wouldn’t have to answer certain questions – my guess, is, however, that although the Republicans will get up there and wave their arms and say certain things, in the end, she’ll probably go through – unless someone between now and the actual vote comes up with a smoking gun that she did something really terrible. My guess is she will be relatively easily confirmed. And with that, I’ll stop and answer any questions answer any questions anyone here may have, either about the process or about what little I may know about Dean Kagan.


QUESTION: Tomoki Ohji, Mainichi Shimbun, Japan. What’s the – what this appointment politically means?

PROFESSOR UROFSKY: Politically. Let me go back to Sotomayor a year ago. Hispanic Americans are the fastest growing demographic segment in the country. Both Republicans and Democrats are fighting for them. In the 1960s and ‘70s, the Republicans had the edge because they were playing the Cuban card, and a lot of Cuban Americans who really hated Castro looked to Republicans like Nixon and Reagan to be strongly anti-Castro. Castro’s dying now and it’s not that much of an issue anymore. At this point, you have third-generation Cuban Americans living in Florida who did not escape from the island and don’t see themselves primarily as Hispanic Americans rather than as Cuban exiles.

Other Hispanic Americans look to the appointment of Sotomayer as a major political coup for them – a recognition of their political power. Politically, there is no specific group. Kagan is Jewish, but Jews are overwhelmingly democratic to begin with so that this is not going to make that much difference. Women will be very happy to see that he appointed not one but two women to the Court and not as a replacement for another woman. Both appointments were replacement for men. So this will, I think, help him politically with that group.

Part of the issue here is some of his more liberal supporters would have liked him to have named a more overtly liberal nominee. Politically that probably wouldn’t have been very smart. And Obama is not a stupid man. What he wants to do is to get these people onto the Court. He’s known Kagan a long time. They were colleagues at the University of Chicago Law School. That’s where he first met her. She recruited him onto the faculty there. He knows her far better, as a matter of fact, than he knew Sonia Sotomayer. She was on the short list for the first appointment. I think politically he felt that would be easier to get Sotomayer through. On this one, my understanding is that they didn’t even really go through a search process; that he essentially said “She’s the one.” And she had been vetted the first time around when they were replacing Justice Souter.

Presidents try to get people on the Court who share their overall philosophy. It’s a way to maintain their influence in way long after they’ve left the White House. So one can guess that – I would say probably on 95 percent of all questions, if you could put Barack Obama here and Elena Kagan there, that they would answer pretty much the same thing.

Now, the problem here is that the Supreme Court’s agenda changes. When Franklin Roosevelt made his appointments it was after the constitutional crisis in the 1930s when conservative justices had voted against New Deal measures, so he appointed people who believed that the government had the power to pass those measures. The problem is that issue died within five years. And a new issue came up before the Court from the early 1940s up into the 1970s. The docket of the Supreme Court was filled with civil rights and civil liberties cases which had not even been on Roosevelt’s mind when he made those appointments.

My friend, Jeff Rosen, has written a very interesting piece saying that we’re asking the wrong questions, because abortion really isn’t that big an issue anymore That even if the Supreme Court reversed Roe v. Wade, a few states would adopt, more severe abortion measures, others wouldn't. He points to what happened in what, I think, was it South Dakota or North Dakota? I can’t – I keep getting them confused. But one of them passed a law banning abortions as a specific challenge to the Supreme Court. And the people of that state ran a petition drive to overturn that law, which was a big shock to the politicians who didn't realize that abortion had so much popular support.

What Jeff is suggesting is that we ought to be asking them about the questions that are going to be on the docket in the next 10, 20, and 30 years. And he thinks that the issues are going to be primarily technological. We ought to be asking them: "What do you think about human cloning? What do you think are the privacy restrictions that ought to be on the Internet? How much power should the government have to control the Internet in terms of national security, in terms of obscenity?" We should be asking about end-of-life options.

He said these are the issue – no, America is an aging nation in a sense. There's a lot of young people, but the -- one of the largest growing cohorts are people in their 80s. And I know that just from some medical issues I've had in the last few years, it is very expensive to have a hip replacement or to have retinal surgery or to have other things. And people in their 80s have more medical issues than do people in their 20s. And he said these are the issues we ought to be asking, because the Court's docket for the next 10, 20, or 30 years is going to be much different than it was for the last 30 years.

We don't know very much about how Kagan feels about any of this. And I would be very surprised if any of the senators really asked her.

This – the Republicans are still fixated on abortion, because it matters to their base. She'll probably give the same answer that the last four candidates have, that Roe v. Wade is now precedent, you don't easily overturn precedent, and it has to be respected, which sort of evades the question. But that -- she'll probably give the same answer they have.

QUESTION: Thank you.

QUESTION: Robert Raffaele, VOA. You mentioned earlier that the judges in these confirmation hearings can't really say how they feel obviously on any one issue.

If you're an average American who does not skew politically one way or the other, conservative or liberal, and you care about a justice nominee's interpretation of the Constitution, in terms of not being an activist but interpreting it according to what the original intent might have been, what would you be listening for in his or her responses to the committee?

PROFESSOR UROFSKY: His or her response isn't going to tell you very much. If I were really, really interested, I would read what she's written and see if there's anything in there.

I think one sign of how desperate the Republicans are to try to find anything about her is that they've resurrected Robert Bork on a telephone conference call, in which he said that she was disqualified because she believed that Judge Barak of the Israeli supreme court was a good justice. And he said, he's one of the most activist judges in the history of the world.

It was pulled out of context.

And also, a question, what does judicial activism mean? You can ask anybody; I think William O. Douglas might have been the only justice who would have said, "I'm a judicial activist." No other judge would even say that, "Of course I'm not an activist. I believe in judicial restraint, except, of course, when the circumstances are such that I've got to do something else."

I don't believe in judicial restraint. And let me explain why. It's not that I don't believe that judges should not reach out. I think they have to reach out at times. Alexis de Tocqueville over 150 years ago -- actually, it’s almost 175 now -- said that in America every important question ultimately goes to the courts.

Now, this has made American history very different than it has been in other places. We've not had street riots. We've not had revolutions. People don't take to the streets when they have a complaint. They go to the Court. And our faith in the judiciary is such that even when the Court hands down rulings that we may not like, for the most part, we will -- except for some extremists -- we will follow them.

When Ruth Bader Ginsburg came before the Senate for her hearings, she said she wished that Roe v. Wade had not been heard when it did, because the states were in the process of revising their abortion statutes at that time. And she believed the Court heard the case too soon. She said it would have come there eventually, but the Court should have waited until the states had more of an opportunity to work this out themselves. And I always thought that was a pretty interesting answer, until recently I had to do some research on abortion. And at the time Roe v. Wade was heard by the Court, there were 17 cases in federal courts challenging state laws, revised and unrevised.

So that even if they hadn't heard Roe and decided in 1973, they would have heard a case in '74, '75, '76. This was not a case of judicial activism, it was a case of a legitimate issue – case of controversy as the constitutional calls it – of coming before the Court. And Chief Justice Rehnquist, who is a conservative – was a conservative, had always argued that in the United States, the Supreme Court is the ultimate arbiter of the Constitution, the same argument that Chief Justice Marshall made 200 years ago. That's where we expect the questions. And to say the Court should not have answered these questions ignores the reality of how the American system works.

Now, the Court will sometimes, and I think legitimately so, say we're not ready or the issue is not ready. So for instance, about 10, 15 years ago, the question of right to die and assisted suicide came before the Court. Now, the right-to-die issue was whether or not people, when they are mortally ill, have the right to refuse treatment, to turn off life support.

And this has been pretty much adopted in all the states. And the Court said, yes, this is clear, there is a right here. And there was not very much fuss over that because the issue had already been worked out by state legislatures and state courts.

However, some people wanted to go further, saying, if we have a right to turn off – if we're on life support and we have a right to turn that off, what if we're not on life support but we are very ill, we're unhappy with our lives, we're very sick; shouldn't we have the right to have assistance in committing suicide?

Now, the issue comes up with people who – say, with ALS, Lou Gehrig's disease – cannot swallow well; don't have the motor coordination to take a gun and shoot themselves or something; essentially want a doctor to give them an injection and end their misery. And the Court – now, so far, there's only one state in the United States that does permit physician-assisted suicide, and that's Oregon. And there, the doctor cannot administer it himself or herself, but may prescribe certain medications that the patient and family can take.

And what the Court said was, there is no right to assisted suicide, and that was unanimous. But five members of the Court – a majority of the Court – wrote concurring opinions which said: “We do not believe that this is an issue now, but if states were to so tighten up end-of-life choices to make it difficult for people to determine their own fate, then we would revisit it.”

In other words, what they said is: We'll look at this when the time is ripe. It's not ripe.

And you get that occasionally. But for the most part, what comes before the Court are hard questions. Usually, there's been a split in the lower courts. One federal circuit will say "A," and another federal circuit will say "not A," on the same issue, and it's the responsibility of the Court to resolve that so that the same law applies throughout the United States. You don't want one law in the 1st Circuit and another in the 2nd that are, you know, directly opposed to one another. And part of the job of the Supreme Court is to sort of monitor the federal system, to make sure that there's at least some uniformity across all the circuits.


QUESTION: Reymer Kluever, Sueddeutsche Zeitung, Germany. Professor Urofsky, I think you’ve covered the whole spectrum. If you'll allow it, three questions. I can kind of read off of --

First, you mentioned judicial activism. And that it’s, in effect, been the most active judges or they using activism – judicial activism – the conservative judges?


QUESTION: How long will this hold up that conservatives can accuse the other side of activism and -- but they are –

PROFESSOR UROFSKY: For as long as they can get away with it. They’re talking to a base back home that doesn’t really seem to understand this. It’s very interesting. They’re -- let me give you two cases, give you an example. One case came down a few years ago and involved land zoning up in Connecticut in which a local town – this is where the submarine base used to be – which was in economic distress – had decided to take a large area, convert it to a multi-use development. There would be a drug factory there. There would be restaurants. There would be new apartments, hotels, et cetera.

And they were using the power of eminent domain, which is the power of the government to condemn land and take it for public use, providing it’s paid for. And there was a question raised in a suit saying it’s one thing if you take land for clear public use, like we’re building a highway. There’s no question that you can condemn land so you can build a highway. But here after, it wasn’t the state that was taking it, it was a private corporation set up by the state to carry out the work of the state. And therefore, they argued their land was not being taken for public use, but for private use.

The court said that we have a long line of precedents here that says this is perfectly acceptable. If you take a look in the 19th century, the railroads were not built by the government; they were built by private companies, but the land they were built on were taken by eminent domain for the use of the railroads. Okay?

Moreover, it’s not so much who the land goes to, but the purpose for which it’s going. Here, yes, the land was going to go to private entities, but it was to help revitalize the tax base of New London, Connecticut, was the town. So what you had here was the majority of the court actually exercising judicial restraint saying, look, this is a state law, we see nothing wrong with it, we have a long line of precedents going back a hundred and some odd years -- this is okay.

The conservatives objected to that, and Justice O’Connor wrote this dissent which she said, “Who knows when they’re going to take my house and turn into a Motel 6.” And Chief Justice Rehnquist waxed eloquent on something else. Now, in fact, the court was being very restrained at that time. They were doing what people advocate judicial restraint say they ought to do. They follow a precedent; they paid heed to what state law was.

Okay. The other case came down last fall, and it was Citizens United. And it was a case involving the McCain-Feingold campaign-finance reform bill. Originally, one section of that bill was involved in the case, and a majority of the court -- all conservatives, all Republican appointees -- decided that they would decide not only that issue, but several other issues that had not even been raised in the original hearing. So they sent it back for reargument saying, we also want to hear A, B, C, D and E.

Now, what's interesting is, many conservatives opposed the New London case, the result, and they yelled "judicial activism," when, in fact, that was a good case of judicial restraint. But they liked the result in Citizens United, because it meant they could get more money for their political campaigns, and so they said that was a good decision, that wasn't judicial activism -- when in fact, it was far more activist than the New London. So part of the whole question of judicial activism is: Whose ox is being gored? Next question.

QUESTION: If I may continue. You mentioned the ritual, or that the hearing of the candidate is basically ritual and without, really, any hope of getting any news -- any real news out of it and any knowledge of the -- of the position of the candidate. Same question here: How long do you think this ritual will hold? If it’s not --

PROFESSOR UROFSKY: At some point -- at some point -- the president is going to name a person -- I don't know which president it would be -- who will say, "I'm not ashamed of my record, and I'm quite willing to talk about it, if I can get the Senate to agree to talk about it seriously."

I think part of the problem -- look, first of all, they vet these candidates very carefully to make sure there's no smoking gun. The last person who went out there and really spoke his mind was Robert Bork, and he was defeated because, as it turned out, some of his views were so far out of the mainstream. And when somebody said, "Well, you know, what do you think about -- you know, why do you want to be a judge?" and he said, "Oh, I think it would be fun" -- that's not the right answer. (Laughter.) "It's – it would be an intellectual challenge." That's not the right answer. David Souter gave the right answer. He said, "I hope that, if I'm a judge, I can leave the Constitution better off than when I became a judge." That was the right answer.

Also, Bork -- I mean, politically, Reagan really misjudged the situation and he thought that Bork would sail through, and he didn't realize that the politics of the matter were stacked against Bork from the beginning. He didn't really have – and once he opened his mouth, he really didn't have a chance. And so since then, people have been very careful. The President's team vets the nominees to make sure there are no smoking guns. Or if you find something like Sotomayor's perfectly legitimate comment that a wise Hispanic woman will make, good decisions, she'll backtrack on it rather than get into a fight with the Senate.

I don't know how long it will last, but it's become such a – it used to be that the senators took the process more seriously in terms of judicial philosophy, what people believed in. Now they seem satisfied with just getting up there, making their statements, trying to embarrass the candidate, and then taking a vote. And so the candidates don't take this -- "Hey, if you're not going to ask me legitimate questions that are serious questions, then I see no reason why I need to give you serious answers and go into areas that you're not interested in."

I mean, I can think of a lot of really good questions they could ask her, which they probably won't. And I think that's a shame, that people – if you ask them about somebody who is really interested, they're not going to get that from the hearings. And you had a third question.

QUESTION: Yeah. Concerning Elena Kagan – sorry for – I was using the opportunity. What will be the effect of her being on the court? She won't really change the equilibrium or the ratio between --


QUESTION: -- liberals and conservatives.

PROFESSOR UROFSKY: No. Right now – but what will make a difference is, she's 20 years younger than Antonin Scalia. The Reagan appointees are getting older. They still are – seem to be in fairly good shape physically, but they are getting older. It seems that if Obama gets – no, the next appointment he's liable to make would be to replace Ruth Bader Ginsburg, who has not been in good health, although, as she keeps saying, rumors of – like Mark Twain, "Rumors of my death are greatly exaggerated." The last time I saw her, she did not look very well at all.

So if he gets three appointments, it will be to replace three on the liberal side, but they'll be younger. They'll be there. And if you're a liberal, what you're hoping for is that when people like Scalia, Thomas, Kennedy step down, that there will be a liberal in the White House to replace them. Now, right now, the balance of power is Anthony Kennedy. He's the man in the middle. He's taken Sandra Day O'Connor's place. It would seem that both Sotomayor and Kagan easily fit into the ideological spots of the people they're replacing.

You would have to have a Scalia go, but remember, he was nominated when he was young. This is what they're all looking for. They're looking for young – relatively speaking, that is – people around 50, because in the United States today that means that these people could have a tenure of 20, 25, even 30 years. They could have an impact on the court for a while. So if Sotomayor and Kagan take care of themselves, they could be here 10, 20, 30 years from now.

How long Scalia will be here? Who knows? If he doesn't go hunting again with Cheney, he could survive longer, I would suppose, but – (Laughter.)

So, I mean, it's a waiting game. With the Supreme Court, you don't have an immediate impact if you're a president. You have to take the long-term view. I'm putting somebody who's going to be on there for a while, who's going to have an impact for a while. Louis Brandeis was on the court for 23 years, and the dissents he wrote -- he was in the minority during much of that time – the dissents he wrote still affect how the Court interprets issues of free speech, privacy, and search and seizure.

That's what you're looking for now. I'm not predicting that Kagan will be a Brandeis. It's hard to get – that you only get them once a century. But if you can put someone on there – she's supposedly very smart. She supposedly will be able to counter Scalia, who many people believe to be the smartest man on the court now. Whether that happens, I don't know.


QUESTION: Robert Raffaele, VOA. Two questions, quickly. You mentioned the long list of people who have not had experience as a judge and justices. What advantages does being a sitting judge or having been a sitting judge give you in the process of deciding these cases and whether or not they're constitutional or –

PROFESSOR UROFSKY: I don't know if it gives you all that much. You have some experience, but deciding cases in a lower court is different. If you're on a court of appeals, most of the time you're sitting on a three-judge panel, and it's not the same three judges. What – it's constantly changing. There are 15, 16 courts per circuit, and they sit in panels of three, and only rarely does the entire circuit sit – called en banc – to hear a case. So the vote there is 2-to-1, essentially; all you need are two votes. And a lot of the cases that come up come by automatically, so you don't have a choice of what you take.

The Supreme Court always sits as nine justices. You need four votes to even accept a case for review. And there's no one above you, so that whereas if you decide in the circuit court you know that if it's a tough case, it's going to go to another level anyway, so to some extent it doesn't really matter whether you vote yay or nay.

I once asked Justice Ginsburg – I said Brandeis said that it takes two to three years before a person really feels comfortable in court, and I've heard other judges say that too, even those who have had prior experience. And she said one of the problems that she did not have – in the Supreme Court, they all work but it's like – let's see, how did Lewis Powell describe it? Nine law firms sharing a building, individual law firms; each justice is with his or her own clerks. And said a lot of the people who come here aren't used to working by themselves; they find the isolation to be difficult.

I was a college professor for a long time; that's how I worked. I worked in my office, I worked in the library, I taught my classes, and I went back and – so I didn't have that problem. Some people seem to take to it like a duck to water. Others have a lot of problems. Justice Souter, who did have judicial experience, had a very, very difficult time adjusting to the Supreme Court.


PROFESSOR UROFSKY: He had trouble writing. He got over that eventually and became relatively -- he was not sure of himself. I think for a while there he was wondering what he was even doing there. He’s not a big city person. He got mugged once running around Washington. He used to jog and he got mugged one night, which I’m sure made him wish he was back home in – what was it, Vermont or New Hampshire, someplace up there.


PROFESSOR UROFSKY: Vermont. He was a bachelor and Justice O’Connor sort of became a den mother for him, made sure that he was invited to Thanksgiving and Christmas dinners, things like that. He had a hard time and eventually he did settle in. As he got more seniority, he became more comfortable. There were some judges who just never did, and they had short, unhappy tenures. The Supreme Court is not for everybody. And I don’t – Brandeis did settle in, settled in fairly quickly. He wrote an important dissent the very first term he was on the Court. But it took – he had been a man who was used to controlling his own life, his own schedule and everything, and he says, “I don’t do that anymore. The Chief Justice now controls the schedule. I have to be there when the court meets. I have to meet deadlines,” like that. So for him it was a big lifestyle change. He had been his own boss, now he was one of nine and subject to other rules.

I don’t know whether or not being an appellate court judge makes you a better Supreme Court Justice. I can think of a number of appellate court judges who weren’t and others who were. At the same point, a number who never held judicial office who were, others who weren’t. I think what we need is a good mind, a lot of smarts, and a judicial temperament. And Kagan, at least from what they say at Harvard, has all those. After all, she was able to take – bring peace to the Harvard Law School. That’s got to say something about her. (Laughter.)

QUESTION: I had one other question, which is that you mentioned that the whole nomination process – confirmation hearing processes were – excuse me, nomination process has become sort of a political scoring points for –


QUESTION: -- both sides. And it seems like it’s been that way ever since the Bork nomination in ’87, but probably way before that as well. But why do you think it has become such a sort of politically heated event for the –

PROFESSOR UROFSKY: Washington has become more politically heated and divided. The two Bush elections were decided by razor-thin majorities; in one case, technically not even a majority. Franklin Roosevelt once said that 40 percent of the country is Democratic, 40 percent are Republicans, and the other 20 percent are independent. I think today, if he were alive, he would say 20 percent are Democrats – maybe 25, 20 percent are Republicans, and everybody else is an independent.

What this has done is push the Republican and Democratic bases further away from the middle. It used to be you governed from the middle. Now, if you’re a Republican, you’re looking to your very conservative base for support because they’re – first it was the Christian right, now it’s the Tea Party, and others are very – these are the people who come out and vote for Republicans, and so you have to keep that base happy.

The Democrats, on the other side, seem to have – labor is not as demanding as the ultra right, because labor isn’t what it used to be, although they – they’re not happy with Obama because he’s not been as pro-labor, in their view, as they think he should have been. Obama, I think, won because he appealed to the center. And what you have is a Congress, especially in the Senate, that is highly partisan. I mean, the idea of a – was it a representative yelling out in the middle of a presidential speech, “Liar,” this was inconceivable a few years ago.

So I think that’s part of it. The whole – all politics in the United States – I mean, I used to live in Virginia. I lived there for 30 years. When I first moved there, it was a conservative Democratic state. The Byrd machine was – Byrd was gone but the machine wasn’t in a sense, and you had a small group of conservative Democrats, gentlemen all, who ran the state very well, I thought. It may not have been all the programs I want, but the state was run and there was a sort of gentlemanly tone. I can remember one time walking over to the governor’s mansion for a reception after something I had been involved in down there, and Senator Willey (ph), who was one of the old war horses of Virginia politics and was quite ill at that time, the governor of Virginia, Jerry Baliles, gave him his arm. I mean, this was just a sort of courtesy type thing. When I went down there, the governor – Miles Godwin who was – Mills Godwin, who was the governor of Virginia, used to walk to his club, which was about 10 blocks away from the capital, for lunch. He had one state trooper in civilian clothes walking with him, none of this big parade or something. It was very civil. I stopped to talk to him once or twice. I said hello. He didn’t know me, but he would stop, he would talk to people on the street. It was a much more civil thing.

Now, Virginia is no better. It’s just as partisan, just as bitter. And it’s a shame because it’s harder to get a compromise going. This health measure – take a look at the fight over that. Extremely bitter. And compare that to when Medicare went through back in the ‘60s, which was strongly opposed and strongly supported, but you didn’t have people yelling and screaming and yelling, “Liar,” at the President and things like that. So part of the process reflects the general divisiveness of politics in America right now.

QUESTION: What do you think her answers during the hearing – what do you think they’ll reveal about her? What would you be listening for in terms of Elena Kagan as a person, as a judge of the law, et cetera? What do you think the American people could learn?

PROFESSOR UROFSKY: I’m not sure. I’m not sure. I think she’ll say the right things: she believes in judicial restraint; she believes in adherence to the Constitution. She’s written most about the First Amendment, so they may ask her questions. She’s said some things that liberals will not be happy with about detention of enemy combatants. She sounded very conservative on that in some of the things that she has said. And First Amendment purists may not agree with everything. So now, whether or not they pick that up and ask her questions on that, I don’t know. But I don’t really expect that we’re going to learn anything more than what’s on Wikipedia right now.


QUESTION: Tomoko Ohji, Mainichi Shimbun, Japan. One more. I’m just wondering if this is the first time the same president appoint women in succession.

PROFESSOR UROFSKY: Yes. The first women was Sandra Day O’Connor and she was appointed by Ronald Reagan, but that was his only woman appointment. The second president was Bill Clinton, who named Ruth Bader Ginsburg. He had one other appointment and that was Stephen Breyer. Obama, surprisingly, has had two appointments and he’s named women to both. I doubt if he gets a third if he’ll name a woman to that. My friend Mark Tushnet up at Harvard said that if Obama really wants some diversity on the Court, his next appointment will be a white Protestant homosexual male who went to Berkeley. (Laughter.)

MODERATOR: Okay, thank you very much.

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