Bench Memos

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Obama DOJ Official on the Political Triumph of Conservative Constitutional Discourse


Law professor Neil J. Kinkopf, who served in the Justice Department’s judicial-nominations shop (the Office of Legal Policy) from 2009 until some time earlier this year, has written a piece titled “Elena Kagan Can’t Say That: The Sorry State of Public Discourse Regarding Constitutional Interpretation.” The commentary consists of a mock memo from the White House Counsel to President Obama objecting to hypothetical proposed testimony by Supreme Court nominee Elena Kagan.

I think that it’s fair to infer from Kinkopf’s mock memo that he finds the state of public discourse on constitutional interpretation to be “sorry” in two respects. First, he thinks (or his fictitious White House counsel thinks) that conservative constitutional discourse, including Chief Justice Roberts’s umpire model, offers a “false promise of objective, neutral judging.” Second, and more strongly, he laments that conservative constitutional discourse has “tremendous public appeal” and that liberals have nothing effective to counter it.

On the first point: So long as judges are human, the ideal of objective, neutral judging will never be fully realized. But that’s no reason to abandon the ideal. (I’m also unclear on what alternative Kinkopf proposes, as even his fictitious White House counsel distances himself from the Obama-esque proposition that a justice in “difficult constitutional cases” must “bring her personal values, experiences, and judgments to the process.”)

As for the second respect: I’m in full agreement with the observation—but of course see it as cause for celebration rather than lamentation.

Kinkopf’s observation—“gleaned,” he states, only from the Obama administration’s “actions”—that the Administration has a “consistent policy” of “refus[ing] to spend any political capital on judicial nominees” is also interesting.


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