Elena Kagan Wrap-Up
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In the wrap-up of the Elena Kagan hearings this week, the Wall Street Journal Law Blog summarized the reaction of several Senators by saying “The gist of both sides’ complaints was the same: If a nominee’s assertions are no guide to how she will judge, what’s the point of hearing testimony?”

The answer to that is simple: If confirmation is based on how a nominee to the Court will judge, what’s the point of an independent judiciary?

The problem here is not that Kagan, like her predecessors, was unwilling to indicate how she might rule on a particular case of issue, nor is the problem that she, again like those who came before her, insisted that she would be a neutral arbiter even though she certainly has strong pre formed opinions on a variety of issues.  The problem is that the Senate has decided that its role in the confirmation process is to screen potential justices for their judicial philosophies rather than for their judicial competence.


Senator Hatch, who has announced his personal intent to vote against confirmation, implicitly made this point clear when he reminded us during the hearings that “elections have consequences”.  A president, regardless of political affiliation, is going to nominate justices that share his judicial philosophies and no amount of advising from the Senate can change that.  Trying to pin down a nominees judicial philosophy is more about rallying support for the political bases of the two parties and shoring up the liberal/conservative credentials of the Senators on the committee.  At the same time, the nominees understand the importance of appearing neutral.  The Court already suffers from public perception problems, in part driven by the use of wedge issues in political campaigns by both parties and in part due to the Court’s own refusal to open oral arguments up for broadcast.  If a nominee were to appear to have prejudged any issue it would further erode the confidence in the independent judiciary.

That the Senate is more concerned with political opportunism than with vetting the competence of a judicial nominee is made clear on the first day of the hearings.  Although the stated intent of the hearings is to learn more about the nominee, instead they open with the preposterous exercise of each Senator making a speech while the nominee sits quietly like a stage prop.

So the hearings remain, as Kagan herself one famously said, “a vapid and hollow charade”.  She was speaking about the refusal of nominee to answer specific questions, but the real charade Is that the Senators are doing anything more than trying to score political points.

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Although the hearings were essentially useless in determining Kagan’s qualifications as a Supreme Court Justice, they did provide a preview of the political narrative that the two parties will be using in upcoming elections.  The Democrats are returning to their working class roots by aligning themselves as the anti-corporate party.  We can expect to see them continue to attack the right wing as being out of touch with the interests of every day Americans through their attacks on several key cases.  Citizen’s United, the Ledbetter case, mandatory arbitration provisions, and limitations on standing all played key roles in the speeches and questions from Democrats.  Also mentioned frequently was Loving v Virginia, which may be a prelude to increased support for legalizing gay marriage.  Republicans will continue to play the judicial activism card, under increased pressure from Democrats who are attempting to label the Roberts Court as conservative activists, while pointing at issues like gun control and free speech.



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