Legal Commentary

The Road to the Supreme Court Runs Through a Stalled Senate Confirmation:

By Todd Zywicki

Obviously I?m exaggerating.  But it does seem peculiar that Kagan, like John Roberts, was nominated by a prior President but never voted on in the Senate.

Is it possible that this is more than a coincidence?  Probably not.  But here?s a theory for perhaps why being a nominated but stalled nominee for the circuit court might actually help you later get nominated to the Supreme Court.

First, there are many, many people qualified for the Supreme Court.  My impression is that the nomination and confirmation process is essentially one that eliminates people off this long list of potentially plausible nominees.  Thus, to a large extent you get ruled out rather than earning your way on to the list.  This is somewhat of a game of ?gotcha? where opponents of the nominee (including those within the White House who lobby for and against various candidates before they are even nominated) look to anything that they can find to trip you up.  This tends to favor stealth candidates with minimal paper records.  Circuit judges who may have had to decide difficult cases thus have a longer paper record that provides potential landmines.  Failed nominees have a bit of an imprimatur of having been nominated with the assumption that they would have been confirmed, but without the paper trail to shoot at.

Second, given that judges are a political base issue, there is cachet in having had one?s nomination held up by the ?bad guys? on the other side.  That Roberts and Kagan were held up makes them into a sort of martyr to the cause that partisans can rally behind.

And the wages of martyrdom may not be too bad?a lucrative law firm partnership for Roberts and the Deanship of Harvard Law School for Kagan.  Topped off by the Supreme Court.  Apparently in life it sometimes is possible to have one?s cake and eat it too.  They also managed to use these positions to build respect across the political aisle, which would have been much more difficult had they gone straight from partisan administration jobs to the circuit court.

Having said that, it is just two data points and I?m not go to register the ?ConfirmMiguelEstradaforscotus.com? website just yet.

Full post as published by The Volokh Conspiracy on May 10, 2010 (boomark / email).