Bench Memos

A Victory for Judicial Restraint . . . and Bring on 2012

The votes are in, and Elena Kagan will be the next Supreme Court justice. Here’s why conservatives should still feel good about the result.

First, Kagan had the most no votes of any Democratic nominee in history save one, Wheeler Hazard Peckham, who failed to win confirmation in 1894. She beat Justice Sotomayor for this dubious honor by six votes, among them senators like Kit Bond and George Voinovich, who voted for President Obama’s previous pick, and Scott Brown and Ben Nelson, who were acting on principle and arguably against their political self-interest.

This nomination has seen the involvement of major interest groups as well, such as the Chamber of Commerce and the NRA, who appear to be realizing the danger judicial activism poses for their constituencies. The Chamber refused to endorse Kagan, making her their first non-endorsement since they started reviewing nominees. The NRA famously opposed Justice Sotomayor’s nomination, and was certainly confirmed in its judgment by her opinion on the McDonald case. In opposing Kagan, whose anti-gun record was even stronger than Sotomayor’s, the NRA has solidified its role in the Supreme Court confirmation process.

Yet the biggest victory in the nomination process has been that the debate was focused not on sordid personal attacks but on real issues of judicial philosophy and temperament.

A repeated concern about Kagan’s philosophy was her willingness to cede authority for interpreting constitutional limits to the other branches, particularly to the legislative branch. In an era of unprecedented government intervention into the lives of the average American, Kagan’s position on the limits of government was the key reason so many referred to her as a likely “rubber-stamp” for the president’s legislative agenda. No one suggests she has promised the president results in any particular case, or even that she plans to vote on cases without taking note of the relevant law or precedent, but the approach to law that she outlined naturally will lead to approval of the expansive agenda President Obama and Democrats in Congress have spent the last year pushing through.

She advocated giving deference to Congress’s own determinations of when its actions were within constitutional limits. If anyone thinks legislators can’t stretch those limits to the breaking point, they need look no further than the work of this Congress.

Another repeated theme was that of the difference between the judicial and the political. Many senators expressed concern that Kagan, who has no judicial experience and minimal legal experience but spent many years approaching the law from an outcome-oriented political perspective, would be able to switch her perspective to that of a neutral arbiter. Their concerns did not rest on her lack of experience alone. Her actions while dean of Harvard Law School showed that she was willing to thwart federal law to promote the school’s views, and her own. As solicitor general, she failed to provide the “vigorous defense” of every U.S. law that she assured the Senate she would undertake, again putting policy ahead of her official legal role.

On the issue of judicial activism vs. judicial restraint, the battle has been won. Democratic senators were falling over themselves to try to misrepresent the Roberts Court as activist, knowing that Americans want judges who will simply apply the law and not let their politics get in the way. They even went so far as to grossly mischaracterize numerous cases, despite testimony before the judiciary committee pointing out the basic factual and legal errors in their assertions. The Left once celebrated the fact that all law was really politics and self-interest at heart. Now, while that refrain may still be heard on law-school campuses, it has been banished from the debate in the public square.

Ultimately, it was the principles behind her nomination that resulted in Kagan’s low vote count and that made her the nominee with the lowest public approval rating to ever gain confirmation. With less than half of Americans believing she should be confirmed, Kagan represents the failure of both the president and the Democratic Senate to provide the type of government people hoped for in 2008. And in a midterm election year when Republicans stand poised to make great gains, such an outcome is exactly what the Democrats can’t afford.

Instead of presenting a well-qualified nominee who impressed Americans with her judicial qualities, the president nominated an administration insider, cementing his reputation for the very type of old-school politics that Americans have been chafing against. Instead of showing independence and principles in the face of an unpopular president, senators rallied around their leader and promoted the idea that the constitutional duty to give the president “advice and consent” on a nominee should mean confirming any friendly and intelligent person with a good resume and a healthy sense of humor.

By all accounts, the November election will put President Obama in a very different position for his next Supreme Court nomination, if he even gets that chance. With Justice Ginsburg declaring her intent to serve at least another five years, this nomination should remind Americans of the significance of elections for determining the future face of the Court. Elena Kagan was just a warm-up. Bring on the battle of 2012.

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

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