Tag: elena kagan

New York Times vs. the Constitution

Last Monday, the New York Times ran an editorial, “The Republicans and the Constitution,” lamenting how Elena Kagan’s nomination ”has become a flashpoint for a much larger debate about the fundamental role of American government.”  (I, of course, was hoping that this was the direction the debate would go.)  The Old Gray Lady was particularly aghast that Congress’s expansive use of the Commerce Clause was being maligned.  Don’t those retrograde obstructionists know that as long as the government passes laws the progressive elite – especially the New York Times editorial board – deigns beneficial, no silly constitutional arguments can possibly be germane?

As you could expect, I found quite a bit to quibble with here, so I wrote a letter to the editor.  My letter wasn’t published, but you can still read it here:

Your editorial  stumbles onto an inconvenient truth: The debate over Elena Kagan’s nomination is indeed one about the “fundamental role of American government.”  That’s a good thing!  The opposition to Kagan is not based on petty partisanship or the politics of personal destruction but instead on principled concerns about whether the nominee sees any constitutional limits on federal power.

You rightly focus on the Commerce Clause aspect of this issue because so many federal excesses have been perpetrated in that provision’s name.  But if Congress can, under the guise of regulating activities that “substantially affect interstate commerce,” tell farmers what to grow in their backyards—as the Supreme Court said in the 1942 Wickard v. Filburn case—is it really so “silly” for Senator Coburn to ask a judicial nominee whether, in the name of lowering healthcare costs, Congress can require that we all eat nutritious foods?

You’re also correct that the Court recently approved Congress’s ability to confine sex offenders—but it did so, narrowly, under the Necessary and Proper Clause, after Solicitor General Kagan abandoned the Commerce Clause argument that had been wholly rejected in the lower courts.

And so, as you say, a vote against Kagan is indeed about more than her or President Obama—but that doesn’t mean it’s a vote against various statutes that you like.  There are good reasons for arguing that some of these laws weren’t good ideas, but that’s beside the point.  The point is that there’s a difference between law and policy and that raising the issue of constitutionality is not an “ideological fuss” or “excuse” but goes to the core of this nation’s first principles. 

The Constitution creates a government of delegated and enumerated—and therefore limited—powers, and so much of the discontent in the country is about the basic question of where the government gets the power to do whatever it wants.  Let the debate continue!

Here are some related thoughts from Cato adjunct scholar Tim Sandefur, reacting to the same editorial.

Judiciary Committee Approves Big-Government Advocate

Elana Kagan has just sailed through the Senate Judiciary Committee on a party-line vote (except Lindsey Graham, of course, who maintained his respectable but – to my mind – overly deferential “elections have consequences” line).  This vote comes as no surprise to anyone who’s been keeping half an eye on the Kagan nomination.  The only senator whose position wasn’t obvious after the confirmation hearings was Arlen Specter, who continued his self-serving ways in criticizing the nominee for the majority of an op-ed before announcing that her approval for televised Supreme Court hearings and Thurgood Marshall constituted “just enough” to win his vote.  (This is clearly an attempt to curry favor with the administration and become an envoy to Syria—call it a conversion on the road to Damascus.) 

The statements made by those opposing Kagan show that this opposition is based not on petty partisanship or the politics of personal destruction but on principled concerns over the nominee’s being a rubberstamp for any assertion of congressional authority.  Senator Hatch particularly stands out as someone who’s struggled with the choice before him and honorably decided that Elena Kagan was a bridge too far.  Senator Coburn also continued the sound line of reasoning that led his “fruit-and-vegetable” questioning to be the highlight of the confirmation hearings. 

Kagan is eminently qualified but it is not at all clear that she sees any constitutional limits on government power.

On the Separation of Press and State

As it often does, The Wall Street Journal this morning offers us an op-ed with which it surely must disagree, entitled “Journalism Needs Government Help” – bringing to mind the fabled knock on the door: “Hi. I’m from the IRS and I’m here to help.” The author is no less than Lee Bollinger, former dean of the law school at the University of Michigan and now president of Columbia University, my undergraduate alma mater. As with many an academic, Bollinger has long been a friend of public-private partnerships: indeed, one could say he has lived by them. But the partnership at issue here is so fraught with peril that one wonders how it can be advanced as uncritically as it is in this little piece.

The argument, in essence, is this. The communications revolution has decimated media budgets. Indeed, “the proliferation of communications outlets has fractured the base of advertising and readers,” leading to shrunken newsrooms, especially in foreign bureaus. Thus the FCC and FTC are now studying the idea of enhanced public funding for journalism. Not to worry, Bollinger assures us, since “we already have a hybrid system of private enterprise and public support” – to wit, public regulation of the broadcast news industry and the Corporation for Public Broadcasting. And the most compelling example of state support not translating into official control, he continues, can be found in our public and private research universities, which receive billions of government dollars annually with no apparent problem.

Really? Try getting your hands on some of those funds, or an appointment in one of those departments, if you have reservations about global warming. Or do we need any better example than the case of Elena Kagan, now before us. When the good dean took her principled stand against admitting military recruiters to the Harvard Law School, the larger university community reminded her of the government funds that were thus put in jeopardy, and she adjusted her position accordingly.

But here comes the kicker: Like those who imagine that there’d be no art without the National Endowment for the Arts, Bollinger tells us that “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.” Was there no news before the invention of NPR, all things considered? And back on the academic analogy, he adds, “Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.” True, but government is categorically different than private businesses, of which there is no shortage. Yet those who fail to notice that difference, or discount it, are forever drawn to government because it is, as we say, so easy to get in bed with.

Senators (Finally) Press Kagan about ObamaCare

Back in May, I suggested:

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law. If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides…

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.

Committee members didn’t ask her those questions during the hearings, as The Wall Street Journal explains. Fortunately, a letter to Kagan from all seven Republicans on the committee has (exhaustively) remedied that oversight.

Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.”  Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.

That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.

This could get interesting.

Will Specter Vote Against Kagan?

I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12-7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations.  Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United.  Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would-be colleague Justice Scalia—but also that the Court “should not re-write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship.  From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.

The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask.  One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush-era Terrorist Surveillance Program.  The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds.  Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower-court decisions.  Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.”  Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt.  Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is.  Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.

CP at Townhall

Kagan May Well Become “The Liberal Scalia”

More highlights from Day 2 of the Kagan confirmation hearings:

•  In addition to backing away from President Obama’s empathy standard, Elena Kagan, under questioning by Senator Grassley, backs away from her “judicial hero” Aharon Barak, saying that she does not share his judicial philosophy, which involves judges making policy decisions and affirmatively shaping society.  This is an important concession.  Grassley also elicits the statement that only the president and Congress should worry about American influence in the world.

•  The wily Arlen Specter, in his last Supreme Court hearing (unless Justice Ginsburg retires over the summer), treats his questioning as a prosecutor would.  Technical questions and cutting off responses when Kagan begins to expound on the current state of the law, when what he really wants to know is what she thinks about the law.  Unfortunately, Specter accepts Kagan’s statements that she respects Congress but does not press her right when the next question would demand an actual opinion on Citizens United or on Morrison (an important case in which the Court struck down the Violence Against Women Act as beyond Congress’s powers to regulate interstate commerce).  Kagan admits that Citizens United was a “jolt to the system” because states had relied on the pre-existing campaign finance regime.  Unfortunately, this is again an empirical statement rather than a normative one.

•  Kagan does express a firm opinion in favor of televising Supreme Court proceedings (this is one of Specter’s bugaboos).  “I guess I’ll have to have my hair done more often,” she says.

•  Lindsey Graham is definitely worth the price of admission.  First he prompts Kagan to admit that “my political views are generally progressive” after she declined to characterize herself in anyway in response to previous senators’ queries.  Then he gets her to endorse her classmate Miguel Estrada for the Supreme Court (which may be of interest to General Petraeus, who testified before another Senate committee today).  Finally, in questioning regarding the Christmas Day bomber, he provokes an ethnic love-in after his question about where Kagan was on Christmas Day elicits the response, “well, like all Jews, I was probably at a Chinese restaurant.”  As he did with Sotomayor, Graham makes clear that he is likely to disagree with many of Kagan’s judicial decisions, but will vote for her regardless.

•  John Cornyn is the first senator to push the size and scope of government as a major line of questioning.  He asks her one of my pet questions: What limits are there on government?”  Kagan replies by reciting the Commerce Clause standards set forth in existing precedent, that Congress cannot touch activity that is not economic or that is left traditionally to state power. Well, that’s progress, but of course it raises the question of whether forcing someone to buy health insurance involves regulating economic activity and whether health care regulation is a traditional state responsibility.

•  Tom Coburn picks up where Cornyn left off, proposing a hypothetical bill requiring everyone to eat three fruits and three vegetables per day.  Kagan considers that a “dumb law” but says that “courts would be wrong to strike down laws simply because they are senseless.”  Well, ok, but is that particular senseless law unconstitutional?  Kagan seems pained (in real psychic discomfort) but Coburn lets her off the hook in reading from the Federalist Papers—a nice edition that should make for a good picture in the Oklahoma papers—and talking about the explosive growth of government.  Kagan shrugs off this discursion by citing Marbury v. Madison—“the role of the courts is to say what the law is”—and concluding that deficits aren’t a problem courts can resolve, at which point Coburn’s time runs out.  We will revisit this issue.

In short, Kagan is without doubt smarter, wittier, and more collegial than Sonia Sotomayor.  Unfortunately, that means she is likely to be more dangerous, a true “liberal Scalia.”  We now know that two of the catchphrases from these hearings will be that “I’m not going to grade cases”—why not?—and that everything the Court has ever decided is “well-settled law.”  In my mind, Kagan has not yet met the burden of persuasion regarding constitutional limits on government, which is my focus at these hearings.  I would look for Senators Sessions, Cornyn, and Coburn to hit this issue hard on the next go-around.

CP at Townhall

Kagan the Tight-Lipped, Fair-Weather Originalist

Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:

  • Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio.  I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy.  Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best.  And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0).  There are policy differences and legal advocacy, and then there’s the rule of law.
  • Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing.  In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”  Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.”  She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong.  Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
  • In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders.  This line of analysis is completely wrong.  It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.  So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously.  Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution.   I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service.  Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
  •  Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law.  This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees.  She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
  • At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.

The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.

CP at Townhall