Elena Kagan Is Obama’s SCOTUS Pick; Now What?
How should the GOP handle her confirmation?


But they should be prepared to vote as a bloc against seating a Justice Kagan, and they should treat the hearings as a real educational opportunity, a chance to lay out the differences between the two parties’ constitutional philosophies. Last year’s Sotomayor hearings are a decent model to build on. Though often frustrating, those hearings did a great deal to discredit the “living Constitution” and the “empathy” model of judging.

President Obama praised retiring Justice John Paul Stevens on Monday for “faithfully applying the core values of our founding to the cases and controversies of our time.” Never mind that this is an improbable description of Justice Stevens. It may be taken as an invitation to a great conversation with Ms. Kagan about the “core values of our founding.” After all, as she herself wrote 15 years ago, “the President and Senate . . . have a constitutional obligation to consider how an individual, as a judge, will read the Constitution.”

Matthew J. Franck is professor emeritus of political science at Radford University, and this summer will become director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.


The Sotomayor confirmation debates last year (in and beyond the Senate) were a great educational moment for defenders of the rule of law. We made significant strides in educating the public and deepening opinion leaders’ and senators’ understanding of the proper role of judges. Yes, many of us were frustrated by questions that were evaded or simply not asked, but overall, conservative senators exceeded past efforts and began a serious critique of the “empathy standard” that is the counterpoint to the rule of law. Even though Sotomayor was confirmed 68–31, that was a record no vote from GOP senators, and it followed Sotomayor’s forceful rejection of her own writings and Obama’s empathy standard. The “living constitution” crowd was furious, deservedly so.

So now, like then, success for defenders of the rule of law should not be defined primarily in terms of the final vote in a lopsidedly liberal Senate. Our central focus should be to expose Kagan’s troubling, subjective standard of judging, namely that the high court exists primarily to look out for the “despised and disadvantaged.” Kagan’s lack of any judicial experience, her extremely limited legal practice, and her very thin scholarly record also require that senators engage in a more searching inquiry into her legal views and conduct, and in especially thorough questioning on important constitutional principles. If that is done well, conservatives will advance the rule of law and position themselves nicely for future elections and confirmation battles in a more conservative Senate.

Todd Gaziano is a senior legal fellow and director of the Center for Legal & Judicial Studies at the Heritage Foundation.


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