Predicting Judges: Vaughn Walker to Elena Kagan

Among the first judicial nominees I ever tracked was Vaughn Walker, when I was working for Congressional Quarterly’s weekly magazine and covering the Judiciary Committees on the Hill. In 1989, key Democratic senators, led by California Sen. Alan Cranston, along with several liberal interest groups, opposed President George H.W. Bush’s nomination of Walker to a U.S. district court in San Francisco. It was primarily because of Walker’s membership in a men-only private club.

Walker, then 45, ended up leaving the club and getting confirmed and became little more than a footnote in a year of successive battles between a Republican president and Democratic Senate over judgeships and Justice Department positions. That summer, the Senate Judiciary Committee rejected nominee William Lucas, a Detroit lawyer who worked primarily in law enforcement, to head the Justice Department’s important civil rights division, and some senators tried in vain to derail Clarence Thomas, who Bush first tapped for the U.S. Court of Appeals for the D.C. Circuit. (Thomas was confirmed in early 1990; Bush then nominated him for the Supreme Court in July 1991.)

With liberals now applauding Walker for his decision this month declaring California’s ban on same-sex marriage unconstitutional, it’s hard not to recall his nomination and be reminded of the difficulty of predicting judges based on early records or the appointing president. Ronald Reagan first nominated Walker, but the nomination stalled in 1988.

The usual pattern is that appointees meet expectations that reflect a president’s views. That’s why the liberalism of Justice David Souter (1990-2009), another Bush appointee, was so notable – and infuriating to conservatives.

We now have a new justice, Elena Kagan, whose relatively scant paper trail has spawned competing forecasts. Her time in the Clinton and Obama administrations leads some observers, including me, to believe she will be at least as liberal as the justice she succeeds, John Paul Stevens.

But it is worth observing the assessment this summer of Stanford Law Professor Michael McConnell, a conservative who previously was a U.S. appeals court judge (appointed by George W. Bush). McConnell, a thoughtful scholar respected across ideological lines, has known Kagan for twenty years, since they were on the faculty at the University of Chicago law school. “I think she will be more conservative than liberals hope, and less liberal than conservatives fear,” McConnell wrote in a detailed eight-page letter of endorsement to the Senate Judiciary Committee.

 He reviewed her writings on free speech, religion and executive power and said, “Obviously, any nominee of this (Obama) Administration will reflect the progressive political outlook of the president … . Much in Elena Kagan’s record demonstrates that outlook. But this must not be exaggerated. On a significant number of important and controversial matters, Elena Kagan has taken positions associated with the conservative side of the legal academy. … No one can foresee the future, but I would not be surprised to find that Elena Kagan, as a justice, serves more as a bridge between the factions on the Court than as a reliably progressive ideological vote.”

Justice Kagan is 50 years old. If she serves to 90, Stevens’ age, she will have four long decades to fulfill the vision of President Obama – or not.