So it’s Elena Kagan, then. The questions are already flying: What is the solicitor general’s judicial philosophy? Is she an ideologue? Should there be a filibuster? Perhaps most important: What questions should Republicans pose during her confirmation hearings? This is an opportunity for a national discussion of politics, law, and the Constitution; National Review Online asked the experts how this opportunity should be used.
JONATHAN H. ADLER
The Senate should be relatively deferential to a president’s judicial nominations, but deference does not mean abdication. Elena Kagan is the first Supreme Court nominee with no prior judicial experience in over 30 years, other than Harriet Miers (and we know how that turned out).
This does not mean she is unqualified, but it does justify careful scrutiny of her record, including her work in the White House counsel’s office and her decisions as solicitor general. Republican senators should also use the confirmation process as another opportunity to educate the public about the consequences of judicial nominations, particularly since few Americans think the courts are too conservative. In a 1995 law-review article, Kagan wrote that the Bork hearings were a better model for Supreme Court confirmation hearings than what has happened since. In her view, the Senate should ask — and demand answers — about both a nominee’s “broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.” If she stands by this view, the public could learn quite a bit. If she does not, Senators should press for an explanation — something more principled than a confirmation conversion.
– NRO contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.
GERARD V. BRADLEY
Elena Kagan possesses the talent, credentials, and accomplishments we look for in a Supreme Court justice. Her lack of judicial experience and the paucity of her scholarship are not assets for the job. But they are not disqualifying. Neither does it matter if she is a lesbian, save insofar as her sexual orientation (whatever it is) may relate to (as cause or effect of) her convictions about the meaning and nature of marriage. These convictions matter a great deal to her qualifications. And they point to grounds for opposition to her.
Let’s stipulate that the substance of Kagan’s views about how judges should interpret the Constitution is “within the mainstream.” So what? The important question is not where her views fall on the bell curve. The important question is whether her views are correct. If Elena Kagan’s views on basic matters of justice central to the common good are wrong — and if these matters fall within her purview as a justice, to be settled by her and as few as four colleagues for all 300 million Americans – then she should be denied confirmation.
Two such matters come immediately to mind. One is abortion. Anyone who believes that the Court in Roe v. Wade misread the Constitution and, in so doing, exposed unborn persons to murderous acts should require Kagan to state that she believes that Roe was wrongly decided. In light of the grave injustice that Roe unleashed upon our land, she should further be required to say that Roe lacks legitimacy, and that it should be overruled at the first appropriate opportunity.