Last fall, Judge Diarmuid O’Scannlain delivered a lecture at Princeton in which he said that some of his colleagues on the Ninth Circuit Court of Appeals—the same court that ruled in 2002 that the inclusion of the words “Under God” in the Pledge of Allegiance was unconstitutional—saw themselves as social workers. Demurring from this conception of the judicial role, he declared that judges “have our separate roles to play.”
As the confirmation process for Solicitor General Elena Kagan draws to a close, the question of whether Ms. Kagan is capable of conforming herself to the appropriate role of judge in the American system should be at the heart of the Senate’s decision. For it is the idea of roles that is at the center of the American constitutional system, and the key test in any judicial confirmation process is whether the nominee understands the appropriate role of the judge in the American system of government. After reviewing Dean Kagan’s testimony and other relevant documents, I believe she fails this test, and I urge the Senate to reject her nomination to the Supreme Court.
The role of a judge is always contextual. It is not the same in all places at all times; rather, as Princeton’s Robert P. George has written, the role of the judge varies according to the powers assigned to judges by recognized authority. In the case of the United States, this authority is primarily found in Article III of the Constitution, which specifies the powers of the judiciary. But the Constitution did not come into existence out of nothing; it is the manifestation of a uniquely American political theory found in the Declaration of Independence, the Federalist Papers, and other great American texts. To understand the judicial role, we must also understand the political theory located in these documents.
The Constitution clearly delineates a limited role for judges. Steven Calabresi, the co-founder of the Federalist Society, has remarked that “there is simply no way to read the bare-bones language of Article III, in contrast to the detailed language of Article I, and conclude that the Framers meant for the Court to be a powerful institution.” Indeed, Alexander Hamilton confirmed this view in Federalist 78, when he famously declared that “the judiciary is beyond comparison the weakest of the three departments of power,” seeing as it has “neither force nor will, but merely judgment.”
This idea of a limited judicial role is rooted in our Declaration. The Declaration affirms that governments “deriv[e] their just powers from the consent of the governed.” All governmental power is, in this sense, “on loan” from the people, and no branch of government, including the judiciary, can exercise power that has not been given to it by the people through the Constitution.
Of course, this does not mean that the judiciary is supposed to let the elected branches of government run amok. Before taking their seats on the Supreme Court, justices take an oath mandated by Article VI to “support this Constitution.” Thus, the judicial role, while limited, includes an obligation to enforce the Constitution’s provisions and defend them when Congress and the president violate the Constitution. If the Supreme Court fails to stop the elected branches when they go too far, it falls into what Prof. Keith Whittington calls “judicial passivism” and fails its constitutional duty.
There may be a wide range of legitimate ways of interpreting the Constitution, but this outline of the judicial role demands that any interpretive method keep rigorously close to the text of the Constitution. Judges may act only with a specific textual warrant, and they must do so in a way that is consistent with the American legal tradition that separates a judge’s personal opinion from her legal opinion. Judges cannot make up rights out of whole cloth, as the Court did in Roe v. Wade, and wherever Supreme Court precedent is fundamentally in conflict with the text and traditions of the Constitution, judges must reject these precedents rather than continuing to make the same unconstitutional mistakes.
Dean Kagan’s judicial philosophy, as far as we can discern it, falls far outside of these constitutional limits. Of course, given her complete lack of judicial experience, sparse academic writings, and deliberately evasive testimony before the Senate Judiciary Committee, we do not have much evidence of her judicial philosophy. This unfortunate circumstance—one of Dean Kagan’s own making—led Sen. George Voinovich, in a thoughtful speech on the Senate floor on Tuesday, to say that we “have no idea what [Dean Kagan] will do on the bench and whether she will be able to suppress her own values to apply the law.”
But Senator Voinovich is not entirely correct. While Dean Kagan has ensured that the evidence is not voluminous, there are important indications of Dean Kagan’s approach to the law. Perhaps the most important clue to her philosophy is her admiration for former Israeli Supreme Court president Aharon Barak. In 2006, Kagan said that Barak is “my judicial hero,” and “the judge or justice in my lifetime whom I think best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”
President Barak is well-known for his extreme judicial activism. This is the man who Seventh Circuit judge Richard Posner said has “created a degree of judicial power undreamt of by our most aggressive Supreme Court justices,” and who “inhabits a completely and, to an American, weirdly different juristic universe.”
It is not difficult to see why Judge Posner is so alarmed by President Barak’s judicial philosophy. It was President Barak, after all, who said that “a judge has a role in the legislative project,” an idea that directly conflicts with the American conception of checks and balances and a limited judicial role.
Yet, when Dean Kagan was asked in her hearings about this and many other quotations from President Barak, she quickly backed away from his judicial philosophy. In fact, she went so far as to say that she admired the judge “not for his particular judicial philosophy, [and] not for any of his particular decisions.”
This doesn’t make sense. How can Kagan simultaneously say that President Barak “best represents . . . the rule of law” but then disagree with the process by which he interprets the law? What Kagan is asking us to believe is that she agrees with the judge but disagrees with his judging.
The most plausible conclusion is that Kagan admires President Barak’s judicial philosophy and thinks that it “best represents . . . the rule of law.” But as we have seen, this philosophy is totally opposed to the American idea of a proper judicial role. In the American context, it is a philosophy that cannot be described as judicial; rather, it is more accurately called a political philosophy, a philosophy that describes political, rather than legal, conduct.
This non-judicial, political philosophy is not only used to justify creating rights that cannot reasonably be found in the Constitution; it is also used to justify ignoring limitations on federal action that are clearly found in the text. The judge who does not conform to the proper judicial role has no boundaries, either in adding to or subtracting from the Constitution.
Viewed through this lens, Dean Kagan’s non-answers to Sen. Tom Coburn’s questions about the Commerce Clause are telling. When Senator Coburn asked her if Congress could require all Americans to eat fruits and vegetables, she did not answer the question. Instead, she repeatedly said that the Court had interpreted the Commerce Clause “broadly,” and was willing only to acknowledge the limitations the Court prescribed in U.S. v. Lopez and U.S. v. Morrison. Notably, she did not acknowledge that there may be additional sources of limitations on congressional power under the Commerce Clause. Her silence on the existence of other limitations on federal power, in the context of her judicial philosophy, gives us good reason to think she would eagerly uphold the individual mandate contained in the recently enacted health-care legislation, notwithstanding that such a mandate has no textual warrant in the Constitution. No responsible senator should vote for a nominee who is unwilling to acknowledge constitutional limitations on federal legislative powers.
Elena Kagan is an accomplished lawyer with a distinguished career. She deserves praise for her public service. But this public service ought not include a lifetime appointment to the United States Supreme Court.
– Newt Gingrich was Speaker of the U.S. House of Representatives from 1995 to 1999.