Ann Althouse
Althouse.blogspot.com
5/10/2010
Today, I listened again to Elena Kagan’s oral argument in Citizens United v. FEC. I was just trying to get a feeling for the quality of her mind, and I was struck by how badly it went. I dug up a Salon article from a few weeks ago: “On the Supreme Court, not a lot of respect for Elena Kagan: The solicitor general’s appearances before the high court have been marked by unusually brusque treatment” by James Doty. He looked to her 5 oral arguments as SG as evidence of “whether Kagan would be an effective liberal on the court,” what sort of power she might have over Anthony Kennedy, whose vote tends to determine outcomes as he shifts from the Court’s liberal 4 to the conservative 4, and whether she could provide an effective counterweight to the Court’s strong conservatives.
When [Citizens United] was argued in September 2009, a modest defeat was still well within the realm of possibility, provided that Kagan could secure Kennedy’s vote. But she seemed oddly unconcerned with addressing his qualms. At one point, Kennedy asked Kagan to address a particular issue, which she had labeled “point two” in her opening remarks:
Kennedy: In the course of this argument, have you covered point two? … I would like to know what it is.
Kagan: I very much appreciate that, Justice Kennedy. I think I did cover point two.
She quickly moved on. Four months later, Kennedy wrote a 5-4 opinion that handed Kagan and the U.S. government a sweeping defeat.
In subsequent arguments, Kagan has proven no more adept at assuaging Kennedy’s anxieties. In a recent case, Kennedy’s question about a particular piece of legal precedent was met with, “I — I am not familiar with that case.” In another argument, Kennedy suggested that Kagan was dodging the crux of his hypothetical: “No, no, no. That makes … my hypo too easy for you.” And in yet another case, Kagan was unable to muster a coherent response to Kennedy’s request for case law supporting the government’s position.
It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she’ll be good at influencing Supreme Court Justices. That may be a poor inference…
The article continues at Althouse.
Ann Althouse is a law professor at the University of Wisconsin, Madison.
