It would have been a mistake to intentionally shortlist four candidates, knowing he would pick the most liberal. The idea is to pick a candidate from the middle of the spectrum you’ve created with your shortlist. That’s how we know he is less likely to pick Wood.
Without looking, what percentage of total decisions in the last two terms do you think were 5-4 with Kennedy, Thomas, Alito, Roberts, and Scalia in the majority?
All the ones that matter. 
I’ll let Elvis off the hook and give you the stats.
5-4 decisions (including any coalition of 5):
2008: 29.1%
2007: 17%
2006: 33%
2005: 13%
Last term there were only 16 decisions (out of 75 total and out of 23 that split 5-4) that split 5-4 along liberal-conservative lines. In 11 of those, Kennedy joined the conservatives. In 5, he joined the liberals.
Predicting which way Kennedy will vote is very difficult. You could make a lot of money gambling if you could do so consistently. And one factor that affects his vote is the strength of the arguments coming from each justice. They aren’t robots. They’re people.
It’s true that some of the important decisions split 5-4 in the predictable way, but even among important decisins, most do not. Here’s a look at the 2007-2008 term’s important cases for example.
Remember that the true short list is not necessarily the rumored one, and that the rumors can be managed/created in such a way as to make it appear real consideration was given to noncontenders of any desired persuasion.
We don’t know jack. A bigger mistake is to give credence to rumors, which may be either organic, speculative, leaked, or manufactured, especially if they appear nowhere but Politico.
I should have been clear about saying I meant the political issues, the ones that “matter” especially to the right wing, not the cut-and-dried stuff. Fair enough? Now, how often do Scalia, Thomas, Alito, and Roberts split even on those? And how often does Kennedy split with them anymore (he lost any claim to nonpartisanship in the Bush v. Gore decision, as you know).
Damn - I was really hoping to get Wood off of the 7th!
So you think the shortlist as it is now known is not the one the White House has been putting out? Because if it is, my point stands, since my argument is about what we can learn based on what list the White House puts out.
I have no idea how to quantify “the political issues, the ones that ‘matter’ especially to the right wing.” But one way would be to look at cases in which the conservative four all unite and the liberal four all unite on the opposite side. Last term, in those cases (which were only 16/75), Kennedy was 11-5. That’s a pretty high degree of instability even for this tiny subset of cases.
I hate to say I told you so, but I told you so. 
I thought the NYT article might function as a preemptive strike of sorts, but I guess I’m bombing an empty bunker. On the plus side, I just discovered the statpacks at SCOTUSblog, which are interesting in an ESPN meets CSPAN way.
Just to be clear, I wasn’t trying to be snarky towards you. I really do appreciate your posts and the knowledge and perspective you bring to this MB.
Well, my parents will be happy. They’re both career Justice Dept. employees who know Kagan from work, and I know they were rooting for her to get the nomination. I’m pretty amused that the next Supreme Court Justice could be a woman who’s seen my kid’s baby picture. 
Sorry not to be able to contribute anything to an analysis of what kind of Justice she’d be . . . my (liberal) parents think she’s nice, but I doubt that says anything about Kagan’s political leanings.
never mind.
Try “the ones that actually get in the news”, then. Especially Fox. You do acknowledge that these justices have been pretty predictable on the more-political questions, don’t you?
Note of interest: Kagan “has no judicial experience” because the Republicans refused even to hold hearings on her 1999 nomination to the DC Appeals Court by Clinton, instead stalling until GWB could appoint Roberts instead.
Now, what do you all think the Republicans will decide on whether or not to bring up her sexual orientation?
My guess is that they’ll try to bring it up without mentioning it explicitly. They’ll use code about “values,” or say that she’s “out of the mainstream.”
Yeah, I was amazed to learn that she’d never argued an appellate case before being appointed Solicitor General. WTF? Talk about being thrown in the deep end of the pool. I also hadn’t realized that Clinton had nominated her for the D.C. Circuit back in 1999 but that the Senate hadn’t taken action… for the seat that eventually went to John Roberts.
Intellect and judicial temperament aside, the next justice should be a schmoozer and a coalition builder, and I think Kagan has the potential to do a good job on that front. Although I would prefer a more extensive paper trail too, right now she looks pretty good to me. It’s reassuring to see Orrin Hatch and Lindsey Graham saying positive things about her already. By all accounts she really did make an effort to build bridges between liberals and conservatives when she was dean at Harvard Law School. We’ll certainly hear more about military recruiters and DADT.
Any idea how much Obama consulted with GOP Judiciary Committee members on this pick? I remember reading that Hatch, in speaking with Clinton back in 1993, prviately assured him that Ginsburg would get GOP votes and ultimately be confirmed. If I were President I might ask Hatch and his committee colleagues to each suggest three liberal/centrist potential nominees who they’d be comfortable with, as a starting point for developing my own shortlist. “Advise and consent” shouldn’t be a meaningless phrase.
Is she openly gay?
I’m just left wondering if you have to be from NYC these days to sit on the SCOTUS.
Of course, they say that about a lot of people who are straight, so I’m not sure you can really call it code. I know there are rumors she’s gay, and it could be true, but if so, it’s not like she is out in public.
She is not out. I think Dio has it right about using code instead. Code they didn’t use about Souter, of course.
At Harvard ,she kicked the military recruiters off campus because of “don’t ask ,don’t tell”. I am sure the military lovers will seethe over that. It is a combination of pro gay rights and anti military wrapped in a neat package.
Jeffrey Toobin on Kagan; he knows her personally: Toobin on high court nominee Kagan - CNN.com
Well, I doubt anyone is going to ask her if she’s gay. But it does seem to be a bit risky to nominate someone who is a closeted gay person (assuming that she is). If she’s a closeted gay, then there is some reason she has chosen to be closeted and can easily be subjected to outing. If that happens during the nomination process, it will be a big distraction, I’ll expect she’ll bow out.