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Can Kagan Sway Conservative Justices? Not Likely, Law Profs Say

Posted May 17, 2010 6:00 AM CDT
By Debra Cassens Weiss

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President Obama cited Elena Kagan’s reputation as a consensus-builder when he nominated the solicitor general to replace Justice John Paul Stevens, but people skills displayed as dean of Harvard Law School may not translate into changed votes on the U.S. Supreme Court.

The New York Times asked several law professors and legal historians whether Kagan could sway justices, particularly swing voter Anthony M. Kennedy. Northwestern law professor Lee Epstein was among those who said it’s not likely.

“They’re not young,” Epstein said of the justices. “They’re very well-educated. They’re not impressionable 13-year-olds.”

Some who support the idea of a persuader justice point to William J. Brennan Jr. The liberal justice was “a famously affable and charming judge with excellent political skills,” the Times says. “But even here it would be a mistake to attribute to charisma what was in fact the product of reason and compromise.”

University of Chicago law professor Geoffrey Stone told the Times that Brennan didn’t persuade by getting people to like him. Instead he looked for common ground on substantive issues. The resulting decisions weren’t always “models of principle or consistency,” according to the newspaper. Finding areas of agreement was easier then, the Times added, because the court was less polarized.

The Times also points out that justices don’t have that much individual contact when working on opinions. They communicate through memorandums and draft opinions. Tentative votes are announced at a private conference after oral arguments.

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