05.10.2010 0

And The Nomination for SCOTUS Goes To… Elena Kagan

By Adam Bitely –

At 10 A.M. this morning, Barack Obama nominated his Solicitor General, Elena Kagan, to replace outgoing Supreme Court Justice John Paul Stevens. Kagan, a relatively easy choice for Obama, should move quickly through the Senate without much trouble since she was already examined by that same body when she was nominated to become Obama’s Solicitor General. There is little new information that can be revealed that has not already hit the public sphere.

Given that Elena Kagan has never served in any judicial role and thus has no legal decisions to examine, the Senate should focus heavily on determining her judicial philosophy. As Bill Wilson, President of Americans for Limited Government put it, “Elena Kagan is an unknown quantity with nothing in her record to recommend her to the highest court in the land. She’s never been a judge, and devoid of any examples, Senators will be hard-pressed to determine exactly what her judicial philosophy is. President Bush’s nomination of Harriet Miers’ was withdrawn for the same exact reason, and rightly so.”

Former Attorney General Ed Meese had this to say about the Kagan nomination:

First and foremost, any nominee to a lifetime appointment to the United States Supreme Court must demonstrate a thorough fidelity to apply the Constitution as it was written, rather than as they would like to re-write it. Given Solicitor General Kagan’s complete lack of judicial experience, and, for that matter, very limited litigation experience, Senators must not be rushed in their deliberative process. Because they have no prior judicial opinions to look to, Senators must conduct a more searching inquiry to determine if Kagan will decide cases based upon what is required by the Constitution as it is actually written, or whether she will rule based upon her own policy preferences.

Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the “despised and disadvantaged.” The problem with this view—which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law–is that it allows judges to favor whichever particular client they view as “despised and disadvantaged.” The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.

There are areas of agreement that many will share with the former Dean of the Harvard Law School, such as this paper that she authored in 1995 about the Bork nomination hearing:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. … [T]he fundamental lesson of the Bork hearings [is] the essential rightness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments.

And as Conn Carroll over at Morning Bell points out:

On this point, we find agreement with Ms. Kagan. As we documented first with the Justice Sonia Sotomayor confirmation hearings, and again with the University of California at Berkeley law school Associate Dean Goodwin Liu hearings, President Obama’s leftist legal nominees have been completely unwilling and unable to defend their liberal legal views from Senate questioning. Instead they have retreated or renounced their past writings in an all too familiar spectacle that Kagan has said: “takes on an air of vacuity and farce.” We sincerely hope that Kagan continues to reject this model and that the U.S. Senate fulfills its proper advice and consent role.

When the Senate begins its hearings on Kagan, they must determine the point of view from which she will interpret the Constitution. We cannot have an honest debate on Kagan if her controversial points of view are excluded from the public eye in the fashion of  past hearings such as Sonia Sotomayor’s and Goodwin Liu’s. Every candidate for this high office should be honestly evaluated on all points, making sure that Obama and company do not keep the controversial points that they would rather not have exposed in the closet. After all, the American public deserves an honest hearing.

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