Kagan, Wood, and Garland would all make OK Supreme Court justices. They wouldn’t be my pick, but after reading opinions and writings, I feel fairly confident that they would not drastically change the ideological composition of the court.
That said, I do have a problem with the way they have made their way onto the short list. Notably, none of them have made significant opinions on abortion (save Wood, who did little more than uphold current law) and none of them have a lot of opinions from which to draw controversy. Yet, even Sonia Sotomayor, whose career seems entirely based on prudence and non-confrontational, was dragged over the coals for one (fairly benign) line that she dropped in speeches across the board. God forbid she had any real public opinions!
I would like to point out Goodwin Liu, the lightning rod nominee for the 9th Circuit. Here he is getting rhetorically slapped around by Sen. Jeff Sessions (R-Al.):
Does he have some radical opinions? You bet! Here’s Liu on reparations:
Here’s Liu on the rightward swing of the Supreme Court:
My point here is that under the current system of only permitting the most publicly silent judges, Liu is not allowed to be a federal judge because he has had opinions. Other nominees could probably be recessed, but Liu’s is controversial precisely because he has made public some of his more radical opinions.
If we lose the ability to appoint judges who have put their opinions out there, we lose our ability to accurately gauge what that judge will do on the bench. Does anyone have any question on what principles Liu would behave as a federal judge? On the other hand, I have no earthly idea what principles Elena Kagan would use, simply because she holds them close to her chest. She knows full well that revealing too much of her personal and judicial philosophy in specific cases might lead her to be unappointable.
This is truly unfortunate. If we limit ourselves to only the judges with the fewest controversial statements, we lose not only our Stevenses and Blackmuns, but also our Scalias and Rehnquists. Scholarship is not a crime, and demanding silence from our potential judges keeps real scholarship out of the courts.
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