So Much For The Kagan Rationale

When President Obama nominated Elena Kagan to replace John Paul Stevens on the Supreme Court, the major rationale offered was that Kagan would be a "consensus builder" able to sway conservative justices (especially Anthony Kennedy) in a progressive or at least moderate direction.

Now that Kagan's first term on the Court is over, it's a good time to assess how that rationale is playing out. Today's Washington Post includes a graphic indicating what percentage of time each justice agreed with the others. Let's look at what percentage of the time each conservative justice agreed with Kagan:

*Roberts: Agreed with Kagan 69% of the time.
*Alito: Agreed with Kagan 67% of the time.
*Thomas: Agreed with Kagan 65% of the time.
*Scalia: Agreed with Kagan 69% of the time.
*Kennedy: Agreed with Kagan 71% of the time.

Contrast those figures with the amount of time each of the liberal justices agreed with Kagan:
*Ginsburg: Agreed with Kagan 90% of the time.
*Breyer: Agreed with Kagan 88% of the time.
*Sotomayor: Agreed with Kagan 94% of the time.

What these numbers suggest is that Kagan, at least at this early point in her tenure, is a reliable liberal vote on the Court. There's very little evidence to suggest that, so far at least,  she holds sway with any of the conservative justices in any meaningful sense.

The crucial case testing Kagan's consensus building abilities was the recent one that gutted Arizona's public campaign finance law. Two elements of that case should be troubling for those hoping that Kagan will be the Court's consensus builder.

First, the 5 conservatives took a very, to put it charitably, "novel" approach to the First Amendment in holding that using public money to "level the playing field" in political campaigns; i.e. guaranteeing MORE SPEECH in the campaign, somehow places a "burden" on a privately financed candidate. If Kagan could not persuade a "moderate" like Justice Kennedy to see the fallacy in that kind of reasoning, it does not bode well for other cases that will come before the Court.

Second, in Kagan's career before her appointment to the Court she was somewhat of a First Amendment scholar. That she could not move ONE of the conservative justices in an area that is her expertise seems to suggest it's highly unlikely she will be able to do it in other areas.

During the Kagan confirmation period, Salon's Glenn Greenwald argued forcefully that if Obama was looking for a consensus builder who could sway conservatives, Diane Wood would be an excellent choice:

"Wood's ability to craft legal opinions to induce conservative judges to join her opinions is renowned, as is the respect she commands from them through unparalleled diligence and force of intellect."

In short, the results of her first term indicate that Elena Kagan will be a reliable liberal vote on the Supreme Court. Unfortunately, she was sold to the Congress and the American public as being able to do more than that. It's early and the jury is still out of course, but so far we have little evidence that Justice Kennedy is being moved by Kagan in any meaningful way.