Confirmation Symbolism

By Mike Dorf

A Supreme Court Justice can be expected to serve for decades; yet questions from Senators inevitably focus mostly on the here and now.  The resulting myopia can be accentuated by accidents of timing.  Consider the Sotomayor hearings.  The case most discussed by Sotomayor's interlocutors was Ricci v. DeStefano.  It's easy to see why the case made such good theater: 1) It involved race/affirmative action, which Sotomayor and Dems generally support, while Repubs and most Americans oppose it (though public support/opposition varies a good deal depending on how it's described by pollsters); 2) the Supreme Court opinion in Ricci directly reversed a ruling by Judge Sotomayor; and thus 3) the case gave Repubs their best opportunity to portray Sotomayor as a militant practitioner of identity politics, combining her vote in Ricci with the "wise Latina" remark.

That was good tv, to be sure, but Ricci is simply not a very important case.  Its holding--that the deliberate rejection of an employment screening device to avoid a mere hypothetical disparate impact lawsuit gives rise to a disparate treatment claim by the people who would have benefited from the selection device--is unlikely to have much practical impact going forward because: 1) employers can accomplish much the same thing without triggering a Ricci lawsuit by doing a better job of predicting the effects of their selection devices before using them; and 2) where there is a more substantial fear of a disparate impact lawsuit, employers can scrap an already-administered selection device, even under the Ricci test.  Thus, Ricci's role in the Sotomayor hearing was grossly inflated, relative to its actual doctrinal importance.  Its chief use was symbolic.

Looking forward to the Kagan confirmation hearing, which begins on Monday of next week, it is relatively easy to see how two cases will likely play an outsized role in her questioning: McDonald v. City of Chicago and Christian Legal Society v. Hastings.  Neither case has been decided.  There are only two days remaining on the Supreme Court calendar for handing down opinions: this Thursday, June 24, and next Monday, June 28, the very day the Kagan hearing commences.  Thus McDonald and CLS will be very much in the public consciousness as Kagan's hearing gets under way.

Both cases also potentially play to the picture of Kagan that at least some Republicans (Senator Coburn, for sure; others unclear) will likely try to present: liberal-out-of-touch-ivory-tower-elitist-anti-military.  Kagan's enforcement as Harvard Law School dean of the school's non-discrimination policy led her, like just about every other law school dean in the country, to keep military recruiters officially off-campus, at least until the Supreme Court's decision in FAIR v. RUMSFELD upheld the Solomon Amendment.  That stance (commonplace and relatively tepid though it was), will put both CLS and McDonald in play.

Consider the CLS case (about which I wrote a column here, as well as blog entries here and here.  That last link points to an exchange between me and Michael McConnell, who is representing the Christian Legal Society.  His main brief can be found here.  I am the principal author of an amicus brief for the Association of American Law Schools supporting Hastings). Like the Solomon Amendment dispute, the CLS case pits a law school administration enforcing a policy aimed at protecting LGBT students from discrimination against people and institutions that have enormous power in the larger society but tends to be under-represented on elite campuses--especially in places like Cambridge and San Francisco.  In CLS, the group consists of socially conservative Christians, while in the Solomon Amendment dispute it was the U.S. military.

The relevance of McDonald to Kagan's hearing is not as immediately obvious.  I expect the Court to hold--probably 5-4--that the Fourteenth Amendment makes the individual right to own and possess firearms protected by the Second Amendment applicable to states and municipalities.  Now Kagan has not, to my knowledge, said much about the Second Amendment.  Her academic writings say nothing about the substance of the provision; in her last confirmation hearing, she said she accepted the authority of the Heller case (really, what else would she say?); but as a law clerk for Justice Marshall she wrote that she was "not sympathetic" to a Second Amendment argument.  Of course, at the time, neither was the law, and there's no reason to think that Kagan was saying anything other than that, but if you're a Republican Senator looking to say something to fire up the folks back home, you could do worse than to suggest that the 1987 law clerk memo shows Kagan's true colors as an anti-gun liberal.

None of this would be fair, or even logically coherent.  After all, the argument against the result in Heller is that the right to use guns is restricted to the military context, so it's ridiculous to say that disagreement with the result in Heller (if it could be imputed to Kagan, which it cannot be, in all fairness), connotes opposition to the military.  But to repeat: These hearings are not about logic or even about predicting how a nominee will vote if confirmed.  They're about symbolism.