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July 18th, 2010

Kagan Failed Her Own Test

By Nathan Tucker

In a 1995 law review article entitled Confirmation Messes, Old and New, Supreme Court nominee Elena Kagan wrote: “The problem [with judicial confirmation hearings] is not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.…The kind of inquiry that would contribute most to understanding and evaluating a nomination is … [a] discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues.…”

Without such a forthright and honest discussion of a nominee’s judicial philosophy, Kagan worried that contemporary confirmation hearings were becoming nothing more than a “vapid and hollow charade.”  In an interview by the Metropolitan Corporate Council published in May 2004, Kagan reiterated the need for authentic Senate confirmation hearings because “[t]he attitude and views that a person brings to the bench make a difference in how they reached those decisions, so the Senate is right to take an interest in who these people are and what they believe.”

Unfortunately, Kagan’s performance during her hearings did little to shed light on the specific attitudes and views she would bring to the bench.  We did learn that, though she famously stated at her hearings that “we are all originalists now,” Kagan showed signs that her fidelity to the Constitution’s original understanding only goes so far.  For instance, Kagan stated that “there are a range of other kinds of provisions in the Constitution of a much more general kind. And — and those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts.”

And how is a judge supposed to interpret these general provisions in the Constitution?  While claiming not to know what a progressive jurist is, Kagan gave a very progressive answer to that question when she said that such provisions should be interpreted by the promise of liberty contained in the Constitution’s preamble.  Though courts have long held the preamble to be simply rhetorical rather than a grant of power, Kagan praised this changing (i.e., progressive) ideal of liberty as her default “original understanding” of the Constitution.

Kagan further disproved that she is actually an originalist when she discussed with senators the process by which the Constitution is changed.  While stating that the formal amendment process is important, Kagan proceeded to state that courts can also bring change to the Constitution by disregarding its original understanding.  She specifically cited Brown v. Board of Education as an example of doing what you think is right “and eventually the law will catch up” (ignoring the fact, as all liberals do, that Brown can be defended on originalist grounds).

As Kagan put it in response to a question by Senator Kohl, “I think that there are some circumstances in which looking to the original intent is the determinative thing in a case and other circumstances in which it is likely not to be.”  Unfortunately, she refused to address under which circumstances she may be a progressive jurist rather than an originalist.  When asked if she agreed with past precedent, even those she may have decided differently if she had been on the Court when they were made, she constantly intoned that such cases are “settled law going forward,” though she was careful to maintain that they are only “entitled to all the weight that precedent usually gets” and that “there are various reasons for why you might overturn a precedent.”

Rather than settling for mere lip service towards past precedent, senators should have, as Kagan herself wrote in her 1995 law review article, insisted “on seeing how theory works in practice by evoking a nominee’s comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces.”

Confirmation hearings are a job interview, and senators must demand that a job applicant explain his or her legal philosophy by using specific examples from past precedent.  While discussing hypothetical questions regarding future laws and facts may cause a nominee to prejudge a case that may later appear before his court, there is no such danger in discussing past cases.  Just as a judge does not have to recuse himself in a pending First Amendment case because he dealt with First Amendment precedent in a similar case last month, so too a nominee would not have to recuse himself for simply discussing precedent during his confirmation hearings.

Kagan, in her 1995 law review article, set the proper standard for confirmation hearings for all job applicants for the federal bench, a standard which she obstinately refused to satisfy.   Consequently, as Senator Specter wrote in his 2000 autobiography Passion for Truth: “In my judgment, the Senate should resist, if not refuse to confirm, Supreme Court nominees who refuse to answer questions on fundamental issues.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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