Tag: Kagan

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.

More Questions for Kagan

Building on Tim’s post about George Will’s latest column, and under the category of great minds thinking alike—at least with respect to what we need to see at the Kagan hearings next week—I also have an article proposing lines of questioning for the Supreme Court nominee

Several of my issue areas overlap with Will’s, and then I conclude:

Of course, Kagan will attempt to deflect these queries—or give a law professor’s explanation without providing her own views (which caused Sen. Arlen Specter to vote against her nomination to be solicitor general).

But the role of a justice is different from that of the solicitor general, who merely uses existing law to argue the government’s case. Moreover, as a leading scholar argued in an influential 1995 article, “the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”

That scholar? Elena Kagan.

She continues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add, and the direction in which she would move the institution.”

If senators ask tough questions about the scope of government power, and Kagan refuses to answer, Kagan will have failed the Kagan standard.

Read the whole thing (which I’m told has been published in several papers around the country this week).  Josh Blackman also has an interesting series of questions.

Crocodile Tears? Liberals Lament Lack of Their Own on the Court

An interesting narrative has arisen among some on the left that the nomination of Elena Kagan shows what chumps Democratic presidents are.  That is, not only could President Obama have tapped a stronger “progressive” voice, but he – like President Clinton before him, and unlike Republican presidents – put avoiding political fights ahead of moving the Court left.  Since LBJ, Democrats have opted for a “moderate technocrat” like Stephen Breyer rather than a “lion” like William Brennan or Thurgood Marshall.  (Sonia Sotomayor was good and necessary for identity politics, the argument continues, but, let’s face it, she’s no liberal Scalia.)

Take this opening quote from a New York Times article that came out the day of the nominee’s announcement: “The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base.”  Or Dahlia Lithwick’s op-ed in Slate about how liberal law students are so many lost sheep because their ideological heroes are deemed unconfirmable and therefore not part of the nomination discussion.

Well.  A few things on this: First, even if the argument were true, it’s simply not statistically significant because we’re only talking four Democratic appointments (Breyer and Ruth Bader Ginsburg by Clinton, Sotomayor and Kagan by Obama; poor Jimmy Carter had none, the same number George W. Bush would have had had he not been re-elected).  Second, if you line up the Republican and Democratic nominees in recent decades, it’s conservatives who are disappointed (need I even mention John Paul Stevens, Anthony Kennedy, and David Souter, let alone Earl Warren and Brennan himself, all Republican nominees).  Third, to say that someone like Ginsburg – a push-the-envelope feminist and ACLU lawyer – is a moderate is to center the jurisprudential spectrum around the law faculty lounge.  And fourth, as David Bernstein details, it is people like Richard Epstein – and other Federalist Society regulars like Dan Troy, Miguel Estrada, John Eastman, Frank Easterbrook, Stephen Bainbridge, and Todd Zywicki (as well as Cato’s own Roger Pilon, Randy Barnett, and Ilya Somin) – who would be considered filibusteringly beyond the pale, much more than Lithwick’s vaunted American Constitution Society stalwarts.

In short, if anything it is Republicans who can rightfully be disappointed in their presidents’ nominees – though Kennedy’s seat was of course originally to have been filled by Robert Bork. More unfortunately, it is libertarian law students who can lament that their kind lacks representation on the High Court – though note that the second choice for Kennedy’s seat was Douglas Ginsburg (the last judicial martyr of the drug war).  And so, as the Court remains securely to the left of the American people, just today ratifying radical assertions of federal legislative and judicial power, Elena Kagan is poised to fit right into that jurisprudential “mainstream.”  Good for the left, bad for the Constitution.