[And Also: I have noted that I was unimpressed with how the Senate examined one of the few areas of significant Kagan scholarship, First Amendment issues. This essay touches upon this area, including the stray question she was asked about libel and the media consolidation issue that was also cited in the below book review.]
This provides an eloquent analysis of why the Supreme Court should be televised, at the very least during opinion days of this magnitude. It also led me to an interesting book review of Brandeis, deemed by the publication in question as the model Kagan should follow. This comes from one of the interesting sections:
Brandeis combines elements of originalism and living constitutionalism into an approach that might be called living originalism.
Brandeis believed that the values of the Founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics. He believed in constitutional change—in a talk called “The Living Law,” he charged that the law had “not kept pace with the rapid development of our political, economic, and social ideals” and said “the challenge of legal justice [was] to conform to our contemporary conceptions of social justice.” But Brandeis insisted that efforts to render constitutional values in a contemporary vocabulary always had to be rooted in the text and in the broad unchanging ideals of the Framers. By interpreting the values of the Framers in light of progressive movements across the range of American history, Brandeis believed they could be preserved in a way that served the needs of citizens in the here and now—which is, after all, what the Constitution was written to do.
Thus, the basic ideal of privacy secured by the Fourth Amendment is expressed in a modern context in his famous Olmstead dissent, the importance of intangible invasions of privacy such as electronic eavesdropping addressed. The original ideals are not ignored or repeatedly replaced, but adapted to a new time. Many understand this concept, others do it without admitted to doing so. Thus, Justice Thomas applies associational liberty using modern experiences and precedents in Doe v. Reed, not resting on the fact that in the past even voting was out in the open.
The review also addresses Brandeis' fear of bigness, which in various cases applied to the government. This underlines the need not to be simplistic about various subjects. The usual idea is that the Supreme Court rejected FDR's economic policies until the "switch in time that saved nine," or rather, that is a simplistic summary. But, Brandeis joined with the majorities in several of these cases. It might be said that in various cases the true switch was on the other side -- the "excesses" (as seen by one side) of the New Deal tempered somewhat, the aims obtained in a somewhat different fashion. I'm not sure how true that is, but get the sense it did occur in various ways. What cases that Brandeis himself joined after all were overturned ala the minimum wage case in which he was part of the dissent?
His support of Zionism is also addressed -- he saw Judaism as an ideal, it promoting various civic values such as its respect for the law. Thus, setting up an ideal society guided by such principles would be a good thing to do. Brandeis' habit at times of letting his ideals guide his analysis of the facts (including in a case cited in the first part of the quote) is also noted. It is hard for great intellectual minds to avoid that sometimes. I'm reading one of those mini bios of Tocqueville and he claims to let the facts guide his ideas, but I'm sure he didn't do so all the time either. If not, his felicity of expression helped to hide it!
The review does not go into certain subjects covered by the tome at issue, such as Brandeis' position on various racial and civil rights issues, beyond free speech and the areas covered. But, as with all good reviews -- such as Kagan's on the confirmation process -- it covers its subject overall while making you think about the concepts involved. This provides an alternative from reading something labeled as being over 900 pages long. And, you thought Brandeis was a verbose writer!
Brandeis' pragmatism mixed with idealism, restraint mixed with activism (in a good sense) when necessary, is a good guidepost for judges today. I don't know if Kagan is such a judge -- Souter seems in my eyes more of that caliber. She has the pragmatism and restraint, but I don't know about the idealism expressed by Brandeis' years of public life. Sotomayor served various causes in her time that put her in good stead, even if she seemed more mundane during the hearings. Kagan focused more on public relations and education, not bad things per se, but not Brandeis either.
We shall see how it goes.