First, the Supreme Court had a bit more to do today. It over three Justices’ dissents, summarily upheld a federal law banning "soft money" donations to, and spending by, the political parties. The justices made sure to underline in McDonald that many firearm regulations are still allowed. This suggests Citizens United is not as broad as some fear as well. A per curiam habeas opinion that sounds like Stevens' was also handed down. And, Sotomayor was the senior justice in one action. And, a quick analysis on the strategic activism of CJ Roberts, a target of the likes of Senators Whitehouse and Franken yesterday.
I told myself that I would not pay much attention to the Kagan hearings since I was a bit depressed at such a middle of the road sort to replace Stevens, her "judicial restraint," "moderation," "pragmatism," etc. at times not something we need right now. The love shown by Sen. Graham, for instance, on her solicitor general work on detainee cases is something of a red flag here. But, who am I kidding? I'm a sucker for this sort of stuff, and it is after all important to get a sense of her and the senators as well. Years ago, she wrote on the confirmation process:
The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind Carter would forbid: discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues. By "judicial philosophy" (a phrase Carter berates. without explanation), I mean such things as the judge's understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory. A nominee's views on these matters could prove quite revealing: contrast, for example, how Antonin Scalia and Thurgood Marshall would have answered these queries, had either decided
She in effect praised the Bork hearings, including its questioning of "judicial methodology, on prior case1aw, on hypothetical cases, on general issues like affirmative action or abortion." The passion involved can be abused, but "the placement of this decision in the political branches says something about its nature- says something, in particular, about its connection to the real-world consequences of judicial behavior." She is more hesitant now, it is to be noted, supported by various Republican senators on the point:
Under questioning by the chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy, Democrat of Vermont, Ms. Kagan said she thought it would be inappropriate for her to talk about how she might rule on pending cases or cases “that might come before the court in the future” — or to answer questions that were “veiled” efforts to get at such issues. Moreover, she said, she also now believed that “it wouldn’t be appropriate for me to talk about past cases” by essentially grading Supreme Court precedents
This is unfortunate and Sen. Coburn -- one of the non-lawyers appreciated for his passion if not some of his extreme views -- is right to be wary of the "dancing" that results. We get a lot of talk of "settled law" as if justices respect that all the time. Scalia doesn't accept Roe, Stevens didn't accept Heller. There is value in senators addressing various concerns (if a chance of a lot of b.s.*), including those of a constitutional matter. The senators don't get to talk to justices on a general basis, do they?
So, you have to catch with you can, judge the nominee's general character (part of qualifications, surely) and hope for some substantive content. In fact, Leahy early on (other than showing that he along with Feingold supports Heller) led her to state her belief that the Constitution sets forth broad rules whose specific applications can change over time ("equality" etc.). We didn't get much more of this under Sen. Coryn went back to his fantasy about there being "traditional" judging and "activist" judging, the latter some recent thing mostly that probably (unsaid) rests on liberals (Schumer, mostly there to provide the defense, got her to say that "activism" has no party) and she said her view doesn't mean some "loosey-goosey" approach with no limits.
[And Also: Dahlia Lithwick notes here Kagan at one point discussed how specific cases would involve complex analysis. Okay. But, the article overall is really a lovefest about how pleasant she is. Everyone just LOVE her, even conservatives like Miguel Estrada, whom she promised to in effect write a pre-emptive letter of support for the next Republican President who wants to nominate him to the courts.
And, it was "it's law all the way down," less about how justices aren't really just fungible law appliers. Sure, she is politically a progressive, but don't suggest this means she will be a "progressive justice." No wise { } here, even if she does eat Chinese on Christmas day! See end of this essay too.]
Kagan has various First Amendment articles setting forth her views, but the subject doesn't appear to have really been addressed except to cover Citizens United in various respects. Her well spoken of article about "presidential administration" was not addressed, though some wanted her to reaffirm (putting aside when "original intent" or conservative issues are threatened under the modern state) the importance of due deference to the elected branches. Talk of Youngstown, but what about laws that both Congress and the President agree upon but are unconstitutional all the same, like stripping of habeas? Less remarked upon.
One trope of some Republicans is that President Obama supports "empathy" for certain people, not an evenhanded application of the law to all. No reference yet, apparently, that this is in effect settled law -- "prejudice against discrete and insular minorities" gets special concern, Madison himself noting the Bill of Rights protect the minority from the excesses of the minority. OTOH, some are struck by their opposition to Justice Marshall, as if it is based on Brown v. Bd. His belief in a strong liberal jurisprudence ala Brennan is well known and reasonably opposed. Fear of use of "foreign law" also came up, the usual "American law" is the final determinant (but sometimes, foreign sources might be of some use, such as defining "ambassador" in common use) defense given.
So, is this all a waste of time, something that is mostly vanilla theater, which seems to be Dahlia Lithwick's basic sentiment at Slate? Yes and no. The discussion does inform the general public and even informs us about Kagan now and again. It addresses -- in some form -- some of the senators' concerns. But, it can be much more substantive. As noted, and this applies to people like Specter who are supposed be adults here, there is possible ground to cover (like her speech writings -- in passing, some comment on legislative history was made ... more on that please). Leahy even started things somewhat on the right foot in his somewhat haphazard way.
I still think 1990s Kagan, in that well written book review, would be somewhat upset (if understanding) of what 2010 Kagan went through here.
---
* This op-ed, including this, is much more convincing than Sen. Sessions here:
In my opinion, Kagan's positions never affected the services' ability to recruit at Harvard. Behind the scenes, the dean ensured that our tiny HLS Veterans Association never lacked for funds or access to facilities. Recruiters simply could not use the school's Office of Career Services. Does this demonstrate an "activist" streak, as some have proclaimed? I don't think so. The school's policy against discrimination was akin to black-letter law. If anything, Kagan was an activist in ensuring that military recruiters had viable access to students and facilities despite the official ban. A Boston-area recruiter later told me that the biggest hurdle he faced recruiting at Harvard Law was trying to answer the students' strangely intellectual questions. But, a lot of special pleading that allows for a lot of dancing doesn't really tell us too much about the candidate involved.
[recruiting in fact went UP during all of this]
The writer, a captain in the Marine Corps and 2008 graduate of Harvard Law School, is serving as a legal adviser to a Marine infantry battalion in southern Afghanistan.
Sessions focus and passion is instructive.