Feature

Kagan: The clues she dropped amid the dodging

Over four days of questioning, Kagan revealed the basics of her judicial philosophy.

“What a waste of time,” said Mark Greenbaum in Salon.com. Before last week’s Senate hearings on Elena Kagan’s Supreme Court nomination, we knew Kagan was a “shrewd careerist” who as dean of Harvard Law School and U.S. solicitor general had left no written or spoken evidence of her views on “any issue of any significance.” Her lifelong goal, it seems, was that one day, she might be so uncontroversial that she could be nominated and confirmed as a Supreme Court justice. After four days of partisan posturing by Republican senators, fawning by Democrats, and brilliant dodging by a charming Kagan, she’s a virtual certainty to be confirmed—but we still know almost nothing about her. She’s obviously a liberal, said Jonah Goldberg in National Review Online. But she wouldn’t even admit that. Asked if she were a “legal progressive,” Kagan coyly claimed to have no idea what the term even means.

She may have dodged that question, said David Ingram in The National Law Journal, but if you listened carefully, she did divulge the basics of her judicial philosophy. The Constitution, she said, is “meant to be interpreted over time”—a direct challenge to the contention of conservative “originalists” that its meaning is fixed. And in a tacit endorsement of an expansive federal role in everything from health care to environmental protection, Kagan indicated she would interpret the Commerce Clause broadly, thereby “granting Congress and the executive branch wide leeway to craft domestic policy.” Most tellingly, said Greg Stohrn in Bloomberg.com, she “contrasted herself” with Chief Justice John Roberts, who likened the role of judges to “umpires” calling balls and strikes. “The metaphor,” Kagan testified, “might suggest to some people that the law is a kind of robotic enterprise.”

Finally! said E.J. Dionne in The Washington Post. For years, conservatives have kept Democrats on the defensive with their allegations that liberal judges—and only liberal judges—engage in “judicial activism.” (Bush v. Gore, anyone?) But in the Kagan hearings, that debate was at long last turned on its head. Hard cases, Kagan asserted, involve “clashes of constitutional values.” In weighing those competing values, she said, judges should defer to the will of the people, as expressed in laws passed by democratically elected legislatures. This was an implicit swipe at the current Republican majority of the court, which has been very active in overturning any law conflicting with its conservative agenda. Republican senators tried to bait Kagan with examples of absurd laws that needed to be overturned, but all they succeeded in demonstrating was that it’s the Right that demands judicial activism. For the GOP, these hearings were nothing more than an opportunity to pander to its Tea Party base, said Stephanie Mencimer in Mother Jones. That’s why Republican senators delivered windy sermons on the sanctity of Second Amendment gun rights and the alleged unconstitutionality of health-care reform. 

We can all agree the hearings had more to do with politics than law, said Jay Nordlinger in National Review Online. But at least they served as a reminder that elections “have consequences.” Despite Kagan’s dodging, there can be little doubt that from abortion to gay rights, she, like Sonia Sotomayor before her, reflects “an Obama attitude toward law and society.” If the public doesn’t want that sort of justice, it can elect more Republicans to the Senate, or it can “vote Obama out of office.” For now, conservatives “can consider themselves lucky that Kagan and Sotomayor have replaced liberal justices, not conservative ones.”

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