Kagan’s Confirmation Hearings and The Slur of the Activist Judge
After two solid days of questioning, some lawmakers may feel like they are not any closer to understanding Solicitor General Elena Kagan’s personal views on Dont Ask, Dont Tell, abortion, or whether or not gun rights are “natural” rights, but anyone watching the hearings certainly has a good understanding of both the GOP and Democratic talking points headed into the midterm elections. While it appears that General Kagan will be confirmed, making history as only the third female Supreme Court Justice, for many on the Senate Judiciary Committee, the hearings were not about General Kagan but about the failures of policy, both contemporary and historical, that define the current Court.
John Roberts is a radical, activist judge
Listening to most of the questioning from the Democrats on the Judiciary Committee and it is clear that they are not pleased with the Chief Justice. And why should they be? Under his guidance the Court has handed over elections to corporate interests, shielded corporations from punitive damages suits, and strayed far from Roberts now infamous “umpire” analogy in judging. This is a Court that has gone out of its way to tilt the scales in toward the benefit of the rich and powerful in a way not seen since the Lochner era. In General Kagan’s questioning the Democrats really only had one thing to ask her: what are you going to do about it?
And Solicitor General’s answer was, essentially, to state, time and time again that she would apply the law with fidelity to statutory intent and a respect for precedent. It was an answer that came with a wink and a nod to the liberals and even the moderates in the Senate at a crucial time in our legislative history. Congress has passed, and is poised to pass, some of the most significant reform legislation since the New Deal and the Democrats wanted assurances that those efforts will not be undone by the corporate shills currently sitting on the bench.
Thurgood Marshall was a radical, activist judge
One would think the ideas of integrated school and the undoing of Jim Crow segregation was not only a good thing, but a moment of our historical past that is beyond controversy. Apparently that is just not the case for folks like Sens. Sessions, Kyl, and Coburn who spent a significant time questioning General Kagan about her admiration for her former boss. There may be no other former Justice that looms as large as Justice Marshall in both statute, respect, and importance, but these members of the GOP still find him a threat. Those who argue against the notion that the GOP has returned to it’s George Wallace-era racist roots must have found these past two days quite uncomfortable as the entire idea that the Court, at one moment in our history, had to whip Congress into shape over the abomination of institutionalized segregation was called into question by the ranking members of the Republican minority. By the end of the hearings it was clear that this is a group of men to whom the 14th Amendment means nothing more than a means to secure challenges to state gun control laws.
Will Elena Kagan be a radical, activist judge?
What became the most clear during General Kagan’s testimony is that “radical activist judge” is in the eye of the beholder, and General Kagan’s testimony gave no clues that she will in fact be either a Justice Stevens or a Justice Roberts, let alone a Justice Marshall. No. General Kagan made it clear that she will be, if confirmed, a Justice Kagan.
Which means she will approach the cases before her with the poise, fierce intellect, and sharp humor she displayed during her questioning. She showed she is not afraid to have an honest intellectual debate and, to that end, should be quite a force for Justices Roberts and Alito to deal with. She already has a notoriously good relationship with Justice Scalia, another very smart and wry force on the bench. Those on the left concerned that she is not “progressive” enough were undoubtedly not swayed by her testimony, and it is likely that those on the right that find her “too progressive” were not swayed as well. For that, General Kagan did her job and showed to be the kind of cool-head needed on the Court right now.
photo courtesy of Harvard Law Record via Flickr