The Oath

by Jeffrey Toobin

  So: Wood or Kagan? Neither one of them offered the kind of compelling biographical story that Sotomayor did. Both Wood and Kagan grew up middle-class and became law professors. Nothing very striking there. The prospect of three women on the Supreme Court for the first time was appealing, but that didn’t help him choose between the two finalists. In fact, Obama was amused at his advisers’ increasingly desperate attempts to draw distinctions between them. (In response to one argument for Wood, Obama said, “Your pitch is that she is a regular person, and she plays chamber music?”)

  As the discussion continued, Obama’s native caution came to the fore. Choosing Wood meant a fight over abortion in the Senate. She had also made critical remarks in speeches about the Bush administration’s war on terror, and these comments would be used to portray her as weak. With fifty-nine Democrats in the Senate, Wood would probably win, but was the struggle really necessary? Could Obama get the justice he wanted without the heartburn? When Wood came for her second interview, Obama told her, “You realize that there is a political dimension to this decision.” Correctly, Wood recognized that was not a promising sign.

  Kagan’s backers also played the age card. Kagan was born in 1960; she had just turned fifty. Wood was born in 1950; she was about to turn sixty. (Her supporters pointed out that Wood’s mother was still in excellent shape.) A younger nominee probably meant a longer tenure—and a greater legacy for Obama on the Supreme Court. In the end, though, Margaret Witt might have tipped the balance.

  Margaret Witt enlisted in the air force in 1987 and enjoyed a sterling record as a flight nurse, first on active duty and later in the reserves. Like many gay people in the military, she avoided questions about her personal life. But in 2004, the estranged husband of a woman Witt was seeing reported her to the air force. After an investigation, Witt was discharged in 2007 under the policy known as “Don’t Ask, Don’t Tell.” From her home in Washington State, Witt, who was by then a major, launched one of the many legal challenges to the policy.

  Obama ran for president on the promise that he would repeal “Don’t Ask, Don’t Tell.” The policy was enshrined in a law, so Obama could not change it without congressional approval. Preoccupied with other matters, Obama did not press legislators on the issue during his first year in office. So lawsuits like Witt’s proliferated. Witt lost in the district court, but then she won a major victory in the Ninth Circuit. The question became whether the government should appeal the Ninth Circuit’s ruling to the Supreme Court.

  As solicitor general, Kagan had to determine the government’s position on Witt’s appeal. Like most others in the Obama administration, Kagan opposed “Don’t Ask, Don’t Tell.” She thought Congress should repeal the law, but there was little question in her mind that it was constitutional. And Kagan thought the Ninth Circuit’s decision was clearly wrong. She believed the government should ask the justices to overturn the decision.

  At the Justice Department and the White House, many people—most, in fact—disagreed with Kagan. The president was already facing charges from his supporters in the gay community that he had betrayed his promises. “Don’t Ask, Don’t Tell” was manifestly unjust. If the Ninth Circuit made it a little harder to discharge gay service members, then so much the better. Pushing his appeal would be a needless insult to some of the president’s biggest fans—and a disgrace to honorable members of the armed forces like Margaret Witt. With the administration split, there’s only one thing to do. The president has to decide.

  So, during her first year as solicitor general, Kagan made the case to Obama that he should approve an appeal of the Ninth Circuit’s decision. Her friends warned her of the risks of taking an unpopular opinion to the White House. Everyone knew she was a candidate for the Supreme Court, and it wouldn’t pay to alienate the president on a touchy issue like this one. But Kagan thought the dispute was about the rule of law. There are right ways to change the law and wrong ways. What the Ninth Circuit did was the wrong way.

  Obama rejected Kagan’s advice. The government let the Ninth Circuit decision stand. But Kagan had impressed the president. Obama had a strange affinity for people who disagreed with him. It was often said that, in staffing his administration, Obama treated supporters of Hillary Clinton better than his own backers. Kagan’s polite but resolute defense of a losing cause resonated with the president. In addition, she presented no political problems on abortion or national security. She was probably an easy confirmation. She was young. (As for Margaret Witt, after her victory in the Ninth Circuit, she won her trial in the district court. The government ultimately settled with her, giving her full retirement benefits. Congress repealed “Don’t Ask, Don’t Tell” in December 2010.)

  On Monday, May 10, 2010, Obama introduced Kagan as his nominee. The moment had little of the drama of Sotomayor’s, but the rollout was smooth and free of controversy. The president called Kagan “one of the nation’s foremost legal minds,” which was hyperbolic, given her modest record of scholarship. Obama also praised her “openness to a broad array of viewpoints” and her “fair-mindedness.” These would be important themes for her confirmation strategy, based largely (and accurately) on her role in taming the ideological conflict at Harvard Law School. (Sotomayor broke the traditional silence of current justices toward nominees and called Kagan to congratulate her.)

  Kagan’s nomination became the subject of a peculiar media phenomenon. The day after she was announced, the Wall Street Journal ran a large front-page photograph of her playing softball when she was a teacher at the University of Chicago Law School, in the early nineties. Two days later, on May 13, the New York Post, which, like the Journal, was owned by Rupert Murdoch’s News Corporation, ran the same photograph, with a full-page headline that read, “Does This Photo Suggest That High Court Nominee Elena Kagan Is a Lesbian?”

  The issue had a close historical analogy. In 1990, when David Souter was nominated to the Supreme Court, he was, like Kagan, fifty years old and never married. For a brief time, the issue of his sexual orientation came up in the press. (This was when the myth arose that Souter always lived with his mother. That was not true, but the insinuation of such an arrangement was the point.) Johnny Carson, who was still on the air, made a few mild jokes about Souter. “He’s lived in the same house his whole life,” Carson said. “And he’s never gotten married—which explains why he’s lived in the same house his entire life!” The issue, such as it was, of Souter’s private life was soon dropped. Given the relatively small number of news and entertainment outlets in 1990, and their relative timidity about exploring such issues, the story faded away.

  The big difference in 2010 was the Internet. Once the softball picture was widely circulated, the story took on a life of its own. It wasn’t just critics of Obama who were speculating about her sexuality. Andrew Sullivan, a prominent blogger of eclectic views, and himself a gay man, made Kagan’s sexuality a major focus. “If Kagan is straight, why have so many people simply assumed she’s gay?” Sullivan wrote in an early post. “The kind of ‘I’m-out-but-not-really-out’ straddle cannot work any more in national public discourse.” Later he wrote, “We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay … and no one will ask directly if this is true and no one in the administration will tell us definitively.” Other bloggers responded to Sullivan, who continued to pursue the story, which wound on for thousands of words. On The Colbert Report (another institution that did not exist in 1990), Stephen Colbert did a segment mocking the Journal and the Post for creating and then reporting the rumor about Kagan’s sex life—but the overall effect was to keep the issue in circulation.

  Kagan’s advisers in the White House struggled with how, and whether, to respond. Was being gay an “accusation” that had to be denied? Would a denial suggest that being gay was somehow sinister
or wrong? Did addressing the rumor dignify it and extend the story? How does one “prove” that someone is gay or straight anyway? Was it better to say nothing at all? For her part, Kagan just seethed.

  In short order, the administration reached a consensus: Kagan should be seen by the public as what she was—a heterosexual. The truth mattered. Ron Klain, Kagan’s friend from law school, hit on the disclosure strategy that the White House ultimately adopted. During her second and third years of law school, Kagan was roommates with Sarah Walzer and Walzer’s boyfriend (now husband), John Barrett. They had e-mailed Klain and volunteered to be “witnesses” for Kagan’s heterosexuality. Klain asked Walzer to give a single interview on the subject of Kagan’s personal life. It would be with Politico, an online publication that was widely read in political circles but with limited circulation outside the Beltway. Walzer agreed, and she spoke to Politico’s Ben Smith.

  The resulting story, which ran under the headline “Elena Kagan’s Friends: She’s Not Gay,” was excruciating but effective. “I’ve known her for most of her adult life and I know she’s straight,” Walzer told Smith. “She dated men when we were in law school, we talked about men—who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago—and she just didn’t find the right person.” Walzer had founded a pioneering social service agency on Long Island, but her role in the story was that of giggly best friend. Walzer recalled “discussion about who she might be interested in—the usual girl talk stuff—talk about how to get his attention.” This was “less along the lines of how to wear your hair,” Walzer said. “It’s an ongoing challenge for very smart women—there are not very many men who would choose women who are smarter than they are.” The story accomplished its purpose. The issue faded.

  Kagan had a very different experience from Sotomayor preparing for her confirmation testimony. Sotomayor had bristled at the “bright young things” in the White House counsel’s office who insisted she become fluent in the full range of constitutional law. Her prep sessions were tense and laborious (and she was in constant pain from her broken ankle). Kagan, on the other hand, was completely familiar with the world of Supreme Court law clerks. Discussing cases was as natural as breathing for her.

  As with Sotomayor, the White House team recognized that Kagan’s “courtesy calls” on senators were serious auditions. Duly prepared, she was ready to answer (or duck) questions about abortion, affirmative action, Citizens United, and a whole range of other issues. But they rarely came up. Instead, over and over, the senators asked her about her position on guns. Sotomayor had much the same experience. It is difficult for people outside the day-to-day operations of the political system to understand the pervasive obsession with gun rights in the contemporary Republican Party, and among many Democrats as well. More to the point, it was especially hard for Kagan and Sotomayor to fathom, since both had spent their entire lives in urban enclaves, where the only gun owners tended to be cops and criminals.

  In making the rounds, Kagan also suffered from a postconfirmation backlash among Republicans against Sotomayor. In 2009, Sotomayor had promised senators that she would have an open mind in the McDonald case, which was then pending. There, the Court ultimately ruled 5–4 that states, like the federal government, had to respect an individual’s right to bear arms. Republicans were so used to winning on gun issues—national Democrats had basically thrown in the towel on gun control—that they were offended that Sotomayor had the temerity to vote with her liberal colleagues. Consequently, many senators found Kagan’s promise of an open mind unpersuasive. In the course of the meetings, Kagan confessed that she had never gone hunting, which in turn won her several invitations to join various senators on their expeditions. Kagan demurred, but she did promise, if she was confirmed, to ask Justice Scalia if she could tag along with him.

  The most important news for Kagan’s prospective vote in the Senate came shortly after her nomination. The National Rifle Association announced its opposition to her and, more importantly, indicated that her confirmation would be a “scored” vote for the senators. A perfect NRA voting record was extremely important to many senators, and now it was clear that a vote for Kagan would ruin any such rating. Kagan had real hopes of picking off a substantial number of Republican votes. When she worked at the White House, she had good relationships with John McCain and Orrin Hatch. Making the rounds on Capitol Hill after her nomination, Kagan had especially friendly meetings with Richard Lugar and Lindsey Graham. The decision by the NRA to score the vote essentially killed Kagan’s chances of winning over more than a handful of Republicans. In particular, Hatch, of Utah, and Lugar, of Indiana, were looking at possible primary challengers who were going to argue that they were insufficiently conservative. There was no point in their taking a risk on this vote, especially since Kagan was likely to be confirmed anyway. (Lugar lost his primary in 2012; Hatch survived his race later that year.)

  The Kagan and Sotomayor nominations showed how politicized the confirmation process had become. After all, there was no doubt that Kagan was intelligent and ethical enough to be a Supreme Court justice. Perhaps, on those grounds alone, she should have won overwhelming confirmation in the Senate. As recently as 1993, Ginsburg had received ninety-six votes, and her background, which included extensive work on behalf of the American Civil Liberties Union, was far more politically controversial than Kagan’s. The same point could be made about the opposition to Alito, who won by only 58–42, despite formal qualifications that were as good as or better than Kagan’s. By 2010, it was clear that the days of confirmation with ninety-plus votes for anyone were over.

  In a way, the politicization of the process was healthy, or at least revealing. The Supreme Court is not an honor society for smart people. It’s the final arbiter on scores of the most controversial political issues in the United States, including gun control. The NRA was under no obligation to indulge the persistent myth that qualities like intelligence or integrity mattered most for a Supreme Court justice. Ginsburg had intelligence and integrity; so did Scalia. What mattered far more was their ideology, which compelled them to see the Constitution in very different ways. Based on the available record, it was a reasonable conclusion that Kagan would be hostile to the NRA’s interests. Opposing her confirmation was the rational thing for the NRA to do.

  Still, as Kagan headed into her hearings, her prospects looked bright. There was no hint of opposition from any of the fifty-nine Democrats in the Senate and no talk of filibuster from the Republicans. The arithmetic looked stacked in her favor. As with other recent Supreme Court nominees, Kagan’s job in testifying was to stay out of trouble.

  There was some irony in Kagan’s embrace of the say-little approach that had become the norm for prospective justices in the post-Bork era. In 1995, when Kagan was still a junior professor, she wrote a 10,000-word article for the University of Chicago Law Review cogently laying out the absurdities of contemporary confirmation hearings. They were “a vapid and hollow charade,” she wrote. “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” For current nominees, Kagan wrote, “the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence.”

  That, of course, was the route that Kagan took. Confronted with her article at the hearing, Kagan hedged. “I do think that much of what I wrote in 1995 was right, but that in some measure I got a bit of the balance off. I skewed it too much toward saying that answering is appropriate even when it would, you know, provide some kind of hints,” she said. “And I think that that was wrong. I think that, in particular, it wouldn’t be appropriate for me to talk about what I think about past cases—you know, to grade cases—because those cases themselves might again come before the court.”
In one respect, Kagan’s 1995 article did anticipate the kind of justice she would become—because the bracing, colloquial writing style quickly showed up in her opinions.

  The Kagan hearings were significant more for what the senators said than for what the nominee did. It was clear that originalism had become official Republican policy—an enormous achievement for Antonin Scalia, who essentially introduced the idea to the wider world only about two decades earlier. As Senator John Cornyn, of Texas, framed the issue, constitutional law amounted to a contest between “traditionalists” who feel bound “to a written Constitution and written laws and precedent” and judges who believe in “empathy, as the president has talked about it, or a living Constitution, which has no fixed meaning.” Tom Coburn, of Oklahoma, said that any view of the Constitution except “original intent is going to give a lot of people in this country heartburn, because what it says is our intellectual capabilities are better than what our original founding documents were, and so we’re so much smarter as we’ve matured that they couldn’t have been right. And that’s dangerous territory for confidence in the Court.”

  Like Obama himself, Kagan did little to fight back against these notions, but there was a cost to their silence. Left unrefuted, originalism began to look like the status quo. There was no one to say that an eighteenth-century document that embraced slavery, that ignored women, and that limited the right to vote was an imperfect guide in resolving contemporary problems. No one made the argument that it was impossible to determine precisely what the framers meant in every provision (or that they often disagreed with one another about what the words meant). No one said the Constitution’s values might be as important as its specific words, or that the framers never wanted or expected later generations to honor their precise understanding of their words, or that the Supreme Court’s own interpretations of those words over time had value, too. Instead, the field was left to the Cornyns and Coburns. For Kagan, it was safer to glide frictionlessly to confirmation. There was only one moment that anyone would remember from Kagan’s hearing. In an awkward introduction to a question about the terrorism arrest of Umar Farouk Abdulmutallab on December 25, 2009, on a Northwest Airlines flight to Detroit, Lindsey Graham asked Kagan where she was on that Christmas Day. Kagan didn’t understand the question at first, but then after Graham clarified it, she started laughing. “You know, like all Jews, I was probably at a Chinese restaurant,” Kagan said. The answer brought down the house and may rank as the most famous utterance by a Supreme Court justice since 1964, when Potter Stewart gave this definition of hard-core pornography: “I know it when I see it.”