We have been told that Elena Kagan has wonderful social skills, is a consensus builder and that Obama chose her as his nominee because he believes she will be able to use these skills to persuade Justice Kennedy, the swing vote on the court, to join the four liberals (one of which will be Kagan) in cases that come before the court and not to join the four conservatives.
As Solicitor General Kagan had the duty of arguing the Government’s case in Citizens United v. FEC, 558 U.S.___ (2010). The government lost the case in a 5-4 decision in which Justice Kennedy voted with the four conservative justices. Apparently Kagan failed to persuade Kennedy with her argument in this case. Of course, losing one case is not a final judgment on a lawyer’s advocacy skills (at least, I hope not) but Law Professor Ann Althouse asks How Good Will Elena Kagan Be At Persuading Other Justices On the Supreme Court? and finds reason to criticize Kagan’s performance here, especially with her handling of questions posed to her by Justice Kennedy.
You can listen to Kagan’s part in the reargument held last September for yourself. Pretend you don’t know the outcome of the case and see if at the end of her argument you think she persuaded Justice Kennedy. Theodore Olson is first heard arguing the Appellant’s case followed by Floyd Abrams for Senator Mitch McConnell as amicus curiae for Appellent, then Elana Kagan as Solicitor General for the Government, and ending with Seth Waxman for Senator John McCain as amicus curiae for the Government. You can download the mp3 file here. Or listen here by clicking the audio player below. Elena Kagan’s argument begins at 39:00 minutes and goes for 36 minutes and 40 seconds ending at 1:15:40 (drag in the track box to advance to a particular point):
Ann Althouse’s conclusion: While social skills will get you cocktail party invitations and may help get others to listen to your argument, it takes a different set of skills to persuade a fellow justice on the Supreme Court to vote your way on a case. If Obama is relying solely on Kagan social skills to persuade Justice Kennedy into to vote with the liberal wing of the court he may be in for a disappointing surprise. Althouse says this:
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. I think a law school dean is engaged in more of a social enterprise in bringing groups of people together.
Smiles and sweet talk aren’t going to work. If it becomes widely known that Obama is relying on such a tactic it might backfire with Justice Kennedy who will not want to be seen as wishy washy or susceptible to that sort of thing.
Althouse also points to this Salon Article from April 15th, On the Supreme Court, not a lot of respect for Elena Kagan. Writing there James doty said:
Based on a review of the transcripts of Kagan’s appearances before the court as President Obama’s solicitor general, there is little reason to believe that she possesses particular deftness on either front. Even more surprisingly, Kagan has not infrequently raised the ire of the court’s more liberal members, her supposed ideological allies. The data points are few (she has argued only six cases before the court), but they give little reason to believe that her transition to the court would be made with anything approaching seamlessness.
Doty specifically points to those parts of Kagan’s oral argument in Citizens United where she failed to follow up on a point she promised to address in her opening and gave poor answers to some of Justice Kennedy’s questions:
When the case 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.
My first reaction was that Republicans should filibuster and try to prevent Kagan from getting on the Court. I still think they should use the confirmation process to educate the public about liberalism as a faulty way to decided legal cases, but maybe it’s not such a good idea to try to stop Kagan. Even if that were possible it might just mean that Obama will find a more effective liberal.