May 09, 2010

SG Kagan and Election Law

With the news confirmed that President Obama will be nominating SG Kagan to the Supreme Court, I thought I'd reflect on what we know about Judge Kagan's views about election law. Here's what we know:

Virtually nothing, especially compared to the last three Court nominees.

You can find all of my blog posts mentioning SG Kagan here. The discussions mostly concern SG Kagan's supplemental briefing and oral argument in the Citizens United case. I disagreed with some strategic choices made in that case by the SG and her team, though I've said that any different strategy almost certainly would not have changed the result.

But her CU strategy reveals nothing about her own thoughts on the constitutional questions in the case. I am not aware of any writing of hers, or any remarks, that give any indication about her views on constitutional issues related to campaign financing, voting rights, redistricting, voter identification, or any of the other important election law issues that have been before the Court many times and that in all likelihood will return again.

This contrasts with the last three nominees. Chief Justice Roberts was the Reagan administration's point person on renewing the Voting Rights Act in 1982, and I was critical of the views he expressed in internal memos on the Act that were made public as part of the confirmation process.

Justice Alito also had written some controversial things about the one person, one vote rule, among other election law issues, which gave some insight into where he was likely to stand on election law issues.

In the case of both Justices, past performance so far has been a pretty good indicator of current returns.

Justice Sotomayor decided a pretty interesting set of election law cases as a lower court judge, and I was able to analyze them in some detail. It is too early to say whether the predictions I made about the kind of Justice she would be are accurate.

Unless something comes out from Clinton Administration papers or otherwise, the only clues we may get from SG Kagan about her election law views will come from questioning at the judiciary committee hearing. (We may learn something from the decision whether to appeal in the SpeechNow case.) Tom Goldstein lists CU as one of the 10 issues expected to be discussed during the nomination hearings, but we have no idea how much she will respond to the questions on any substantive level.

So at this point, on issues related to election law, there is not much to go on, other than that a Democratic president is likely to pick someone who is liberal on a number of issues, including election law. Campaign finance is tricky, however. Just look at the views of leading liberal constitutional law scholar Kathleen Sullivan.

I hope we will learn more in the next few months.

Posted by Rick Hasen at May 9, 2010 09:41 PM