But, in the words of Supreme Court Justice Elena Kagan, “Democracy is not a game.” The committee’s choices will set the nation’s fiscal course for years — if not decades — to come, and will affect virtually all American voters, industries and communities of interest. The stakes couldn’t be higher.

There is only one way to ensure that committee members (the “supers”) stay super-focused on the general good rather than personal gains: through robust transparency. All potentially corrupting outside influences — large campaign contributors, lobbying contacts and fundraising relationships with outside political groups — must be made public.

The reasons for the first two are obvious. Real-time disclosure of large campaign contributions made to supers while they are deliberating is a key way for the American people to ascertain who is trying to curry favor now. Indeed, there is bipartisan support to impose a tight deadline upon such contributions — a rarity in today’s polarized political environment.

In early August, Sen. David Vitter, R-La., introduced the Super Committee Sunshine Act, which would force committee members to disclose contributions over $1,000 within a 48-hour window. In his words, “Given the important work this committee will be doing over the next four months, it’s just plain good government for the public to know what special interests are trying to influence the committee.”

Last week, Reps. Dave Loebsack, D-Iowa, Mike Quigley, D-Ill., and Jim Renacci, R-Ohio, introduced the more comprehensive Deficit Committee Transparency Act. Like its Senate counterpart, this bill would demand prompt disclosure of campaign contributions. It would also require supers and their staffs to publicly disclose meetings with lobbyists and other special interests within 48 hours.

Disclosing lobbying contacts is just plain common sense. As the Washington Post recently reported, almost 100 registered lobbyists who used to work for members of the supercommittee now represent “defense companies, health-care conglomerates, Wall Street banks and others with a vested interest in the outcome of the panel’s work.” And, half of the supers currently employ former lobbyists on their staffs. These close connections already raise the suspicion of backroom dealings. Holding meetings in secret does nothing but confirm our worst suspicions.

Unfortunately, both these bills are currently languishing in committee, and are not likely to see the light of day unless public attention forces congressional leaders to act. Even so, these measures are not enough.

The supers must also be forced to disclose their involvement in soliciting funds for supposedly independent groups that seek to influence politics. These groups — like SuperPACs, 501(c)(4)s, and trade organizations like the Chamber of Commerce — play an outsize role in today’s elections, and can be designed to shield tit-for-tat arrangements with specific candidates. Without transparency, special interests could funnel political dollars for supers through friendly third-party groups with no disclosure obligations, ensuring that their political largess never becomes public.

Supers have certainly benefited from outside spending in recent elections. In her tight reelection last year, Sen. Patty Murray, D-Wash., enjoyed more than $9 million of outside spending, helping her squeak by her Republican opponent, Dino Rossi. Sen. Pat Toomey, R-Pa., spent years as the president of the anti-tax Club for Growth, a group that spent $8.2 million on independent expenditures last election cycle. As supers anticipate future hard elections, there is no question they will want these heavy-hitting political players on their side.

The temptation to promise political favors today for electoral support tomorrow will be hard to resist. The only solution is full transparency. After all, our democracy is on the front line.

Yesterday, a similar pattern emerged.  In 2005, two Denver residents were removed from a Bush campaign event solely due to a bumper sticker on their car which read:  ”No More Blood for Oil.”  They sued, alleging their First Amendment rights had been violated, but the lower court dismissed the case and the appeals court upheld the dismissal.  The Supreme Court yesterday refused to review that dismissal, but in a fairly unusual written opinion dissenting from that refusal, Ginsburg — joined by Sotomayor — argued that these ejections constituted a clear violation of these citizens’ First Amendment rights which the Court should adjudicate.  She wrote:  “ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker.”  Kagan, again, refused to join those two Justices, siding instead with the conservative bloc and Breyer in voting to refuse the case.

Caution is warranted against reading too much into Kagan’s actions, particularly the latter one.  There are multiple factors which the Court must consider in deciding which cases to take, and a refusal to review a case does not denote agreement with the outcome in the lower court (of the two decisions, Kagan’s refusal to stay the execution is more revealing).  Moreover, in both cases, the outcome would not have changed had Kagan joined Ginsburg and Sotomayor, so it’s possible that her joining with the majority was merely some sort of strategic calculation to curry favor early on.  Still, these two decisions not to join Ginsburg and Sotomayor are substantive ones, and are at least worth noting as very preliminary signs of Kagan’s approach on the Court.

* * * * *

As for the Obama administration’s defense in court of both The Defense of Marriage Act and Don’t Ask/Don’t Tell, as well as the President’s generally anemic approach to gay issues, my views are roughly the same as those expressed here by Andrew Sullivan.  I intend to write more in the next few days about the contours and limits of the DOJ’s duty to defend the constitutionality of duly enacted statutes even where the President purports to disagree with those laws. 

In other words, the supposedly safe, moderate-appearing, blank slate nominee (Kagan) received fewer confirmation votes, and was less politically popular, than the supposedly risky, clearly liberal nominee with a long record of judicial opining and controversial statements (Sotomayor). Aren’t there important lessons in those facts? Doesn’t that rather clearly contradict the endless excuse-making from the Democratic establishment that muddled moderation is politically necessary? If you’re going to attract a tiny handful of GOP votes no matter what, why not nominate someone who will enliven the public, inspire your base, and provide an opportunity to advocate and defend a progressive judicial philosophy?

I would say: No, there are no important lessons in those facts. Kagan almost certainly did worse than Sotomayor not because of anything having to do with them as Court candidates, but because Barack Obama was far more popular in spring 2009 than in spring 2010. Greenwald supplies a nice Gallup chart showing support for various nominees over the years, and a quick glance reveals that support for nominees appears to be highly correlated with presidential approval levels (I don’t know of any research on that point; for the general question of how public opinion affects Senate votes on SCOTUS nominees, see work from Jeff Lax, John Kastellec and Justin Phillips here, and on Kagan specifically here; via the Monkey Cage).

Neither nomination wound up receiving much attention from the press, certainly not enough for most Americans to share Greenwald’s sense that Sotomayor was “clearly liberal” while Kagan was “moderate-appearing.” Fortunately, we have some polling to look at on that one. Pew asked what people thought of Kagan (in June 2010) and Sotomayor (in June 2009): “What is your impression of (Kagan/Sotomayor)? Do you think she is liberal, moderate, or conservative?” In fact, slightly fewer people were willing to answer the question for Kagan (41 percent saying “unsure”) than for Sotomayor (26 percent unsure). Of those who did have an opinion, however, a plurality believed Kagan was liberal (28 percent), not moderate (24), while Sotomayor was the other way around: 34 percent moderate, 31 percent liberal. So whatever Greenwald believes about them (and whatever is actually the case about them), the American people by a small margin found Kagan to be a bit more liberal.

I think we can safely say a couple of things. Had the two nominations been reversed in time, odds are that Kagan would have received more votes than Sotomayor. And, to the extent it mattered, Kagan’s lack of a paper trail was almost certainly a plus. Republicans really didn’t come up with much of anything against her, and yet they still voted heavily against the nomination. It’s hard to believe that a specific point for them to rally against would have made it less likely to oppose her. So I don’t think Greenwald’s logic here stands up well at all.

However, I do think all of this raises a more interesting question. If we take it as a given that Kagan is less liberal than other potential nominees, and that Obama’s goal is (or at least, from the liberal point of view, should be) to put the most liberal justices possible on the Court, did Obama shoot too low? Kagan received 63 votes, but at least one “no” vote — Ben Nelson — was pledged to vote yes on cloture. So Kagan received at least 64 solid votes for cloture, or four more than she needed. The question is whether a nominee perceived to be more liberal would have received fewer votes. Kastellec, Lux and Phillips do show that ideological extremism costs a nominee votes in the Senate. My sense is that a four-vote margin is pretty slim. It’s very easy for me to imagine those four votes (Lugar, Gregg, Graham and Nelson) slipping away with just a bit more of a nudge, which would leave the nominee with an even 60. The question then comes down to what would shake the next group — Collins, Snowe, Bayh, Lincoln and a few other moderate Democrats. Against all that is the question of whether all of the Republican opponents of Kagan would have also voted against cloture, which is information we (and, probably, the White House) don’t know.

So: Was Kagan a good choice if Obama wanted the most liberal justice that could be confirmed? My guess is, yes, she probably was, more or less — it’s awful difficult to make these fine calibrations going in. Actually, I’d say that’s true in two ways. For confirmation, I think it’s difficult to tell going in how liberal (or, for a GOP nominee, how conservative) the nominee will be perceived to be. Robert Bork was, certainly, going to be perceived as conservative … but had he given different answers during his Judiciary Committee hearings, it’s certainly possible that he would have been perceived as less extreme. In this, Obama presumably had pretty good information about the odds of Kagan handling the nomination process well, in which “well” is defined as avoiding as much controversy as possible.

I think far more important, however, is that the error margin on how potential nominees will behave once confirmed is far, far larger than are the perceived ideological differences between them at the time of the nomination decision. Of course, a president might want other qualities — intellect, forms of descriptive representation and, of course, age. But when it comes to ideology, if Obama was choosing between Kagan, Sotomayor and a handful of other similarly liberal potential nominees and wanted the one who would wind up the farthest to the left on the bench, I think the correct answer is: he can’t know. We can’t know. Kagan and Sotomayor, most likely, don’t know. We can be fairly certain that Kagan and Sotomayor will be more liberal than, say, Roberts and Alito, but no one knows which of them will wind up farther to the left, or which of Roberts and Alito will wind up farther to the right. So for a president who wants a reliable ideological vote, the things to look for are indications of basic orientation (are we sure she’s a liberal?) and whether she can be confirmed. Beyond that, I think, is just speculation and guesswork.

This originally appeared at Jonathan Bernstein’s blog.

[Note: Greenwald replies to this in the update to his original original post.]

First, this new Washington Post article analyzes the likely impact of Kagan and bears this headline on the Post‘s main webpage:  ”Court ideology unlikely to shift.”  The article itself similarly predicts that “her confirmation is considered unlikely to immediately shift the court’s ideology.”  But then this sentence appears:

Although she is expected to fit comfortably within the liberal wing of the court, she does not seem to be as liberal as Stevens was during his final years on the bench.

Doesn’t that negate, or at least strongly undermine, the article’s principal claim that she will likely have no ideological effect on the Court?  If it’s true that she’ll be less ”liberal” than Stevens — which was a leading objection for the start for those who urged Obama not to select her — then doesn’t that mean, by definition, that she will move the Court to the Right?  Unless we’re still indulging this fantasy that Kagan — through the sheer force of her personality and supernatural skills of conciliation — will ascend into the Court and begin magically hypnotizing Justice Kennedy and the other conservative justices to change their views in a way that Justice Stevens could not (despite his being renown for having a close relationship with Justice Kennedy), doesn’t this acknowledgment by the Post mean that the most likely impact of Kagan’s confirmation is a right-wing shift?  The way to assess a new Justice’s impact is by evaluating where they fall on the spectrum not in absolute terms, but in comparison to the Justice they are replacing.

That said, I became slightly more comfortable with Kagan once I watched her hearing, even as vapid and hollow as that hearing was (though it was mildly more informative than the completely farcical Sotomayor and Roberts hearings).  She’s intelligent in the extreme, and I do expect her to vote reliably with the Breyer/Ginsberg/Sotomayor bloc on most issues, with the exception that she’ll likely be far more deferential to Obama administration positions generally and assertions of executive power specifically.  But the case against Kagan from the start was that the Justice she would replace was the leader of the “liberal” wing of the Court and its most emphatic advocate, and that replacing him with a more moderate Justice (even one who would be reliably Democratic) would move the already right-wing Court further to the Right — not radically, but marginally.  As the Post article today inadvertently suggests, that seems as likely as ever after her confirmation hearing.

The second point concerns the “justification” repeatedly offered for Obama’s having nominated someone with such a sparse record:  namely, that Democrats — not just with Court nominees but in general — must rely on stealth maneuvers, moderate-appearing advocates, and blank-slate nominations because doing so is politically necessary.  This is the same genre of excuse the Democratic establishment and its supporters offer for much of what it does.  The Kagan nomination should bury this false excuse-making for good.

Obama’s prior Supreme Court nominee, Sonia Sotomayor, was the anti-Kagan (which is why I vigorously supported her nomination):  she had 15 years of judicial opinions behind her, so that everyone could see what kind of judge she would be.  Beyond that, she had given numerous speeches and interviews on a variety of difficult topics and had advocated for controversial views, because she didn’t adopt a pathologically risk-adverse approach to succeeding in life.  And what was the outcome?

Sotomayor was confirmed with 5 more YES votes — and 6 fewer NO votes — than Kagan (68-31 for Sotomayor v. 63-37 for Kagan).  Beyond that, Sotomayor was substantially more popular with the public than Kagan.  From Gallup earlier this week:  “Compared with public support for Sotomayor at a similar point on her path to the high court, support for Kagan is lower across the board — including across gender, age, and political lines.”  Indeed, Kagan is the first Supreme Court Justice in the last 25 years to be confirmed to the Court with less than 50% public approval:

In other words, the supposedly safe, moderate-appearing, blank slate nominee (Kagan) received fewer confirmation votes, and was less politically popular, than the supposedly risky, clearly liberal nominee with a long record of judicial opining and controversial statements (Sotomayor).  Aren’t there important lessons in those facts?  Doesn’t that rather clearly contradict the endless excuse-making from the Democratic establishment that muddled moderation is politically necessary?  If you’re going to attract a tiny handful of GOP votes no matter what, why not nominate someone who will enliven the public, inspire your base, and provide an opportunity to advocate and defend a progressive judicial philosophy?

The reality is — and this has long been clear — that Americans have little respect for, and even less interest in, people who stand for nothing and seem afraid of their own belief system.  Clarity of principle and courage of conviction are almost always more politically appealing than muddled incoherence, calibrated careerism, or muted cowardice.  The GOP’s recognition of this fact was the primary cause of George Bush’s otherwise inexplicable political success (the key line from his 2004 RNC Convention acceptance speech:  ”Even when we don’t agree, at least you know what I believe and where I stand“).  And many of the Democrats’ failures have been due not to excessively strong advocacy of liberal views, but to the opposite:  confusion about what they believe, if anything.

In any event, what’s clear is that the Democratic establishment avoids progressive positions not because they wish deep down that they could embrace them but believe that it’s politically impossible to do so.  As the Kagan episode demonstrates, muddled moderation is a political liability, not an asset.  The Democratic establishment embraces the policies, positions and nominees that they do because that’s what they believe in (this and this are the face of the Democratic establishment).  The supposed political advantage of “moderation” is not the cause of what Democrats do, but rather the factually dubious placating excuse given to progressives to explain this all away.

UPDATE:  Jonathan Bernstein, who is on a perpetual quest in life to shield Barack Obama from blame for anything, has convinced himself — without citing a shred of data — that the approval ratings of Supreme Court nominees are determined by the popularity of the President who  nominates them (and therefore, needless to say, criticisms over Obama’s choice of Kagan are misguided).  He asserts that “support for nominees appears to be highly correlated with presidential approval levels” and thus:

Kagan almost certainly did worse than Sotomayor not because of anything having to do with them as Court candidates, but because Barack Obama was far more popular in spring 2009 than in spring 2010. 

Someone should tell Bernstein that George W. Bush was quite unpopular in 2005 and 2006 — certainly more unpopular than Obama is now.  Despite that fact, Bush’s Supreme Court nominees during that time (John Roberts and Sam Alito) were quite popular, especially Roberts — the most popular nominee of the last 25 years, who was more popular than Sotomayor and far more popular than Kagan, despite the fact that Bush had fallen to 39% approval ratings at the time of confirmation.  By 2006, Bush’s approval ratings had collapsed to humiliating levels (33%), yet his 2006 nominee (Alito) was quite popular — also far more popular than Kagan.  Those facts negate Bernstein’s evidence-free belief that what determines the popularity of a nominee is the popularity of the President. 

Beyond that, Ronald Reagan had healthy approval ratings in 1987 — the same time when his nominee, Robert Bork, received the lowest public approval rating of any nominee of the last 30 years, and was ultimately rejected.  Moreover, as the Gallup chart I excerpted above reveals, the most unpopular nominee since Robert Bork was Harriet Miers, nominated the very same year as the highly popular Roberts.  Despite being nominated close to Roberts in time, she had 18 points lower public approval than Roberts did.  That further demonstrates that it is the nominee — not the popularity of the President — which is the most significant factor in determining the nominee’s popularity.  How else to explain the vastly disparate approval ratings of two Bush nominees (Roberts and Miers) nominated in the very same year?

Now I see why Bernstein cited no evidence for his claim that “support for nominees appears to be highly correlated with presidential approval levels”:  because none exists.  Virtually all the available evidence provided here proves exactly the opposite of what the Obama-defending political scientist claims.