This is one of those topics where I feel like I should say something — a Supreme Court nomination is a big deal, after all — but there’s just not much to say. Hence the title of the post. Is there any doubt that Kagan will be confirmed? I don’t think so. So all the headlines between now and then — “Abortion May Be a Sleeper Issue,” “Debate Stirred Over Experience” — are really just documenting the usual confirmation kabuki. Conservatives squawk because Kagan has a short paper trail. They’d also squawk if she had a long paper trail. They squawk because she is not a conservative. Liberals squawk because the short paper trail means that they suspect she’s not as liberal as they are. They’re still coming to grips with the fact that Obama is not as liberal as they are. And so we go, back and forth.
Then there’s all this discussion — I am not bothering to search for links — about whether Kagan would be a collegial presence, whether her collegiality could lure Kennedy into majorities with the Court liberals, whether the mere fact that people are discussing this possibility will make Kennedy resist her charms. This misunderstands strategic behavior on the Court. I mean, I’m sure being a sweetheart is worth a little something, but let’s not exaggerate what personality or personal relationships can accomplish. Scalia and Ginsburg are good friends but that doesn’t mean they agree on much.
Strategic behavior is much more likely to involve writing opinions that others feel comfortable joining. In other words, it involves building a majority coalition. That is done by crafting the substance of the opinion, not by sending flowers to swing justices. In this sense, it appears that Kagan could be a good choice: she has been described as having a “history of pragmatism over partisanship.” But that’s a short-term concern, because Kagan will probably be on the Court well after Kennedy is gone. If recent history is any indicator, she’ll be a pretty reliable liberal vote.