A newly released videotape of Supreme Court nominee Elena Kagan and Justice Anthony Kennedy offers an interesting insight into a relationship that some hope will evolve into a liberal leaning legal partnership on the high court.
Much of the discussion about Kagan’s nomination, announced by President Obama on May 10, has been on her reputation as someone who is skilled at reaching consensus with colleagues. This talent is considered critical in securing Kennedy’s vote which is often necessary to attain a majority in sharply-divided cases.
In the videotape, Kagan discounts the often used phrase describing Kennedy as the Court’s “swing vote,” saying that depiction fails to properly illuminate the public on Kennedy’s contributions. “Far from swinging between positions that are defined by others, Justice Kennedy consistently charts his own course,” Kagan said in an introduction to a Harvard Law School class in 2008.
Kagan went on to call Kennedy, “a deeply intelligent and reflective man who has emerged as one of our nation’s most admirable and greatest jurists.” Kagan, as dean of the law school, was hosting the justice, himself a Harvard Law School graduate, in honor of his first two decades of service on the Supreme Court.
In announcing his selection to replace retiring Justice John Paul Stevens, Obama praised Kagan’s legal skills and intellect but also stressed her temperament and what he called “her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.”
That skill will undoubtedly be tested if Kagan is confirmed to the high court. Even Stevens, who is all but deified by many liberals, has often been unable to persuade Kennedy to join him in cases where one vote–often Kennedy’s–makes the difference between majority and dissent. It may be asking too much of Kagan, in an institution where personal affections can only go so far when there is genuine disagreement on matters of legal substance, to work some sort of mystic charm on Kennedy when Stevens could not.
Whether in genuine admiration or simply bestowing kind words on her guest, Kagan in 2008 certainly laid down the ground work necessary to foster a good relationship with Kennedy. In explaining his influence on the court, Kagan pointed to Kennedy’s independence, integrity and what she called his “unique and evolving vision of law.”
Kennedy for his part welcomed Kagan’s gracious introduction and spoke approvingly of her work in adjusting the curriculum at the law school. Interestingly, Kennedy who called himself an “old duffer,” after a few minutes of speaking said he wanted his comments to be off the record and not reportable. His request didn’t appear to be directed to anyone in particular and was made out of an interest that his words not “go out on the cosmic web or something.”
It’s not clear if Kennedy was aware of the video camera in the back of the room recording the class which lasted 55 minutes.
Kennedy reflected on some of the significant cases of the past 20 years including those focused on abortion and flag burning. He also talked about the mechanics of the Court including the thousands of petitions the justices get each year to hear cases. “Every great job has some drudgery to it,” Kennedy said. “In our business it is [these] petitions.”
He also described the scene in the closed-door conference when the justices meet after hearing oral arguments. It is here where the justices vote and decide who will write the opinions. “There’s a moment of quiet–a moment of awe, as you recognize that someone is going to have to write a decision in a case that may be quite controversial as a public matter. And you know that in announcing the opinion–especially if it is controversial–you are going to make a withdrawal from a deposit of capital or reservoir of trust.”