Politics & Policy

Elena Kagan Is Obama’s SCOTUS Pick; Now What?

How should the GOP handle her confirmation?

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.

The second matter is marriage. Kagan is on record as saying that traditional marriage laws lack a “rational basis.” This is tantamount to saying that she would read the Fourteenth Amendment to mandate same-sex marriage across the land. If Kagan is permitted to act on these views, she would participate in a social revolution as momentous as that delivered in Roe. This one, too, would alienate most Americans from the Supreme Court, even from the Constitution itself. It would be another institutional disaster piled on top of a grave injury to the common good.

On matters such as equal protection of everyone against lethal violence and the protection of marriage, the relevant criterion for a prospective Supreme Court justice is getting it right. Where mistakes have ruinous consequences, being in the alleged “mainstream” is not good enough.

Gerard V. Bradley is professor of law at the University of Notre Dame, and a former president of the Fellowship of Catholic Scholars.

JAMES R. COPLAND

What do conservatives mean when they speak of “judicial activism”? (Hint: It doesn’t mean overturning clearly wrong legal precedents, nor does it mean overturning laws enacted by Congress that contradict the clear text of the Constitution.)

Was the president right to accuse this Supreme Court of giving undue political influence to corporate special interests? (Hint: Not unless you believe there’s a principled reason to give General Electric and Disney the unlimited right to make their opinions heard but not the NRA or NAACP.)

Should judges follow the president’s advice to give special consideration to disadvantaged parties in legal disputes? (Hint: If they do, it’s far from clear that the truly disadvantaged in society won’t be worse off in the aggregate.)

We should focus on these and similar questions as the Senate considers the nomination of Elena Kagan, who — as I expected — was tapped by President Obama to replace John Paul Stevens on the Supreme Court. Notwithstanding her lack of judicial and litigation experience (Kagan almost certainly doesn’t meet what she herself described as the “threshold requirements” of the job), I wouldn’t expect her to follow her own advice and engage with Senators “in meaningful discussion of legal issues.” What we will see is hemming and hawing — and, absent a heretofore unknown revelation, a confirmation. But that doesn’t mean we can’t take advantage of the public’s attention and help to clarify some very important issues.

James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.

MATTHEW J. FRANCK

Elena Kagan will certainly be confirmed to the Supreme Court this summer. She is not an outstanding nominee, judged by the scanty record of her legal thinking. But she is a “safe” one — clerkship with Thurgood Marshall, professor at Chicago, dean at Harvard, confirmed last year as solicitor general — and the lack of much of a paper trail on her jurisprudential views will do her more good than harm in the confirmation hearings.

The Republicans will not block Kagan with a filibuster, though they might delay things a bit if the Democrats put on an unseemly rush. And the GOP should not attempt to prevent a floor vote on Kagan unless something comes to light that makes her manifestly unfit for judicial service.

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.

TODD F. GAZIANO

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.

WENDY S. LONG

Anyone (including Elena Kagan) nominated by a president (including Barack Obama) who has articulated a lawless standard for judges faces a high burden to overcome: to prove that she has a different judicial philosophy from the man who nominated her.

As Sen. Jeff Sessions said today, it is “the antithesis of law” to pursue personal political agendas in the courts. We need to spend time educating the public and senators (particularly the seven Republicans who voted for Kagan for SG) that this is serious business. The opposition should not waste a lot of time in the run-up to her hearings raising expectations that they will reveal anything. They won’t. They will — to use words Kagan herself once used in reference to Supreme Court nominees’ confirmation hearings — take on “an air of vacuity and farce.” They will do nothing to dispel the heavy presumption, in the absence of any judicial record, that she will be a liberal judicial activist on the Court who will do great damage to the Constitution – the William Brennan of the 21st century.

The opposition — i.e., the defenders of limited government and our written Constitution — needs to start talking right away about Kagan’s view, shared by her old boss Thurgood Marshall, that the U.S. Constitution was “defective” from the start. We need to explain why she’s wrong to say that, when she and William Brennan and Thurgood Marshall rewrite the Constitution, they are fixing or improving what the Framers gave us.

Can anything constructive come out of this battle?

Only if the opposition can get more Senators than the 31 who voted against Kagan a year ago to oppose her nomination to the Supreme Court; only if more Americans than voted for Barack Obama resolve never again to elect a president who will do grave damage to the Constitution with nominations like this one.

Wendy S. Long is an attorney in New York and a former clerk on both the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit.

PENNY NANCE

We are disturbed that Elena Kagan not only has zero judicial experience, never having presided over so much as a traffic violation, but also has indicated in the past that she supports activist judges. The last thing America needs is more judicial activism.

It doesn’t matter whether justices are men or women, as long as they understand that their role is to apply the law fairly and not make it up or try to impose a political agenda from the bench. It concerns us that, once again, President Obama has turned to an individual who puts her personal and political agenda over the rule of law.

We were hoping President Obama would nominate someone who would help unite the country after the bruising health-care battle. Unfortunately, Obama picked someone who will no doubt rubberstamp his far-Left agenda.

Elections have consequences that last far beyond two, four, or even six years. That’s why it is so important that Americans elect politicians who will appoint judges who will defend the Constitution, support American families, and uphold the right to life.

Penny Nance is CEO of Concerned Women for America.

WALTER OLSON

I think Senate conservatives, especially given their minority status, should save their fire for the worst and most dangerous liberal nominees. Elena “I love the Federalist Society” Kagan clearly isn’t in that category, or anywhere close. That said, hearings can serve as useful mini-seminars in how ideas that pass for uncontroversial in high-end legal academia — a hothouse milieu that helped bring us both the Obama and Clinton administrations — can be painfully out of touch with those that prevail in the rest of society.

Recall the furor over Sonia Sotomayor’s “wise Latina” comments, which assuredly made safe applause lines when originally delivered on the academic circuit. When exposed to wider public debate, the notion that a judge’s ethnicity might improve her decisionmaking proved hotly controversial, and the nominee prudently backed away. Even those of us who oppose the military gay ban should recognize that Kagan’s decision to bar service recruiters from Harvard, and then fight Congress on the issue, was deeply wrongheaded. Yet among top law schools, it was the overwhelmingly popular stance to take. Why is that? Senators are within their rights to ask.

Walter Olson is a senior fellow at the Cato Institute and the author of Schools for Misrule: Legal Academia and an Overlawyered America, due out next year from Encounter.

CARRIE SEVERINO

Let me be the first to say it: Elena Kagan was a great dean at Harvard Law School. She was far more balanced to conservative students than previous administrations, but roughly maintained the same ideological balance on the faculty.

But none of that speaks to her qualifications for the Supreme Court, and the confirmation process cannot be permitted to end there. The Senate must hold Kagan to her own standard and insist on a “discussion, first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues.” This is particularly important in the face of a strikingly thin public record. Does she accept the president’s articulated standards asking for empathy and reduced court scrutiny of the constitutionality of legislation? Would she substitute her personal ideology for legal analysis, as she did when she kicked military recruiters off campus at Harvard and when she failed to defend DOMA and Don’t Ask Don’t Tell as rigorously as she promised during her SG confirmation hearings? If the Senate gives her a pass, they will miss the opportunity to have a real discussion of judicial philosophy at a time when constitutionalism is enjoying a public resurgence. And Kagan’s own prediction will come true: The confirmation process will devolve into “vacuity and farce.”

Carrie Severino is chief counsel and policy director for the Judicial Crisis Network.

EUGENE VOLOKH

It seems very likely that Elena Kagan will be confirmed. Moreover, I doubt that conservatives or libertarians should try to block her, since it seems unlikely that any replacement nominee will be any better for us than Solicitor General Kagan would be.

But the nomination debate should be an excellent opportunity for conservatives to articulate their vision of the Constitution — on matters such as limits on federal power, the right of Americans to keep and bear arms, toleration for religious symbols in government speech, property rights, and the like — and explain why the American people should support a movement that would further this conservative vision, rather than the liberal vision of the Obama administration. This might not change the outcome of the nomination vote. But it could help influence the outcome of the vote in November.

Eugene Volokh is a professor of law at UCLA School of Law. He blogs at the Volokh Conspiracy.

CHARMAINE YOEST

Solicitor General Elena Kagan’s record includes an affiliation with hard-line pro-abortion organizations. Kagan has contributed money to a pro-abortion organization, the National Partnership for Women and Families, which lists as one of its major goals to “block attempts to limit reproductive rights.” We all know that this refers to abortion. But, somewhat atypically, they go on to make their agenda explicit, stating that their objectives include: “to give every woman access to . . . abortion services.”

The relationships among the women involved are a predictably interlocking web of abortion activism. The president of the NPWF is Debra Ness, who serves on the board of directors of Emily’s List, the organization devoted to electing pro-abortion women to office. The founder and chairman of the board of Emily’s List, Ellen Malcolm, is also the chair of NPWF’s board of directors.

Significantly, the NPWF website also includes a section on the confirmation of Supreme Court justices. They declare that federal judges should have as a primary concern “whether women will have access to the reproductive care they need.” In AUL’s work with state legislators on laws that defend life, we’ve seen this canard about “abortion access” implemented consistently as hostility to commonsense legislation that the vast majority of Americans support, such as parental notification, informed consent, and bans on partial-birth abortion.

Through her association with this group and articles she has written, Kagan has staked out a clear position of active support for unrestricted abortion. She has also hailed as her “hero” Aharon Barak, one of the world’s leading defenders of judicial activism, who believes that judges “have inherent authority to override statutes.”

If overturning the will of the people, as expressed through elected representatives, is Kagan’s definition of heroism, we now have great need of an entirely different kind of heroism. We have come to a juncture with the Court that will demand uncommon political courage from our representatives to oppose this nomination in defense of the rule of law and our Constitution.

Charmaine Yoest is president and CEO of Americans United for Life.

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