PFAW Memo: Evaluating the Kagan Hearings

To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way
Date: July 13, 2010
Re: Evaluating the Kagan Hearings

As we approached the hearings for Elena Kagan's confirmation to the Supreme Court, there was one prediction taking shape for media and political insiders alike. It wasn't that Solicitor General Kagan would come off as too conservative or too liberal, as some commentators claimed. The predication that everyone was making was that the confirmation hearings would be boring.

And everyone was wrong.

More than any hearings in recent memory, perhaps since those of Robert Bork, Americans learned how a nominee would approach the law and her role as a Supreme Court Justice. She was as erudite, personable and witty as Chief Justice Roberts was during his hearings, but unlike Roberts, Kagan also offered real substance for anyone willing to listen and real evidence that our debate around the Supreme Court is starting to change for the better.

Obviously, there were questions that were not appropriate for a nominee to answer, and, while its easy to quibble about where to draw the line, no one can argue that it had to be drawn somewhere. As much as we'd sometimes like them to, judicial nominees shouldn't prejudge cases or declare how they'd rule on a given question. Solicitor General Kagan's decision about what was off limits and what wasn't was a reasonable attempt to respect that constraint.

But that restraint didn't prevent Kagan from telling us quite a bit about how she viewed the role of a Supreme Court Justice or from laying out a forceful and well grounded approach to the Constitution.

Kagan said a great deal about how judges should approach Congressional statutes and argued for significant deference to legislators and reluctance to strike down federal law. Even when invited to take on straw men (like Senator Coburn's fruits-and-vegetables line of questioning) she went to great lengths to describe the latitude that Congress should be allowed, even pointing to Justice Holmes, approvingly noting that he “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”

In applying laws passed by Congress, she emphasized looking at Congressional intent and examining the Congressional record—approaches very much at issue in cases like Ledbetter and Citizens United. Her testimony made an unmistakable argument both for the importance of judges' responsibility to uphold the Constitution and for the limits of what judges should do.

Maybe even more importantly, Kagan showed a surprising willingness to take on right-wing code words that have hobbled our conversation for years. Her response to Senator Klobuchar's question about John Roberts' balls-and-strikes analogy is a prime example. Kagan's answer eviscerated the metaphor that conservatives have been praising for years. Judges need to recognize and apply the values of the Constitution, she argued, and that isn't the kind of job a robot can do.

Democratic Senators, for their part, were unflinching and united in their criticism of the ideology pushed by the Roberts Court, with a particular focus on Citizens United. Senator Franken blasted the Court for ignoring Congressional fact-finding and handing down an unnecessarily broad ruling; Senator Whitehouse took on Chief Justice Roberts's grounds for overruling precedent in the same case; and Senator Schumer defended the long history of rulings that found anti-corruption legislation to be in line with the First Amendment. In each case, the criticism wasn't limited to the decision in a single case; these Senators were challenging the aggressively conservative judicial ideology of the Roberts Court.

Republicans, to the extent that they engaged in a debate about the law, articulated a position far out of the mainstream. Most notably, GOP Senators chose to attack Justice Thurgood Marshall and some declared that they might not have voted for his confirmation. Given that Marshall, a civil rights hero, was confirmed over the opposition of a small minority of Senators in 1967 decidedly opposed to racial justice, Republican Senators were putting themselves in uncomfortable company.

Equally revealing was Senator Coburn's side of the fruits-and-veggies debate. Essentially demanding a return to Lochner-era jurisprudence, Coburn seemed to blame the national debt on Supreme Court Justices who were insufficiently willing to overrule the decisions of Congress.

Americans are not happy with the results of President Bush's appointment of John Roberts and Samuel Alito. A recent poll conducted by People For the American Way confirms what most people already know: Americans are profoundly worried about the amount of corporate influence in our political system and deeply disagree with the Court's ruling in Citizens United. The same is true of other cases. The standard GOP talking points (“judicial activism,” “original intent,” “not legislating from the bench”) aren't ringing true any more, and there's room for a richer debate than the one we've been having for the last few decades.

For years the Right Wing made the courts a red-meat issue by focusing exclusively on the issues they cared about: criminalizing all abortions, denying gay rights and outlawing flag burning. Those issues remain important, but the right-wing strategy is running out of gas—those issues barely warranted a mention at the hearings. Instead we were treated to a real conversation about how the Court and the Constitution impact the lives of individual Americans.

Hopefully, in coming years, we'll have more of that conversation, and if our national dialogue around these issues is as “boring” as the Kagan hearings, it's going to be a fascinating conversation, indeed.

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