In Elena Kagan, President Obama has nominated a person of great intellectual attainment, and unquestioned personal integrity. In these important respects, she is a nominee much in the mode of both nominees of the President’s predecessor, George W. Bush, namely: John Roberts and Samuel Alito. There are some who argue that intellectual ability and personal probity are sufficient qualifications for someone to serve on the Supreme Court of the United States. President Obama disagrees with that position, and I believe he is right to reject it. In explaining his decisions to vote against the confirmation of Chief Justice Roberts and Justice Alito, then-Senator Obama explained that a suitable justice must have a sound view of the role of the courts in our Constitutional system. Again, I agree.
Where I believe President Obama errs is in his view of the proper role of the courts. In envisaging courts as agents of social change unconstrained by the text, logic, structure, and original understanding of the Constitution, he misunderstands the important but limited role of judges in our constitutional system. The judicial office is not a license for jurists to usurp the authority of legislators, or impose on the nation their preferred ideas about social justice or personal rights. When judges do that, in the name of a right to abortion, for example, or to redefine marriage or drive religion from public life, they betray the Constitution in whose name they purport to act.
So, Solicitor General Kagan’s nomination to the Supreme Court provides an important opportunity for a national conversation on the proper role of the judiciary in our system of democratic republican government. Senators, in particular, should follow the President’s lead and advice in questioning the nominee closely about her view of the role of judges, and oppose confirmation if they find that she espouses a view contrary to the one they believe to be proper under the Constitution. To this end, as Kagan herself noted in relation to previous Supreme Court nominees, it is imperative that she answer questions about particular issues, including abortion, marriage, and the role of religious faith in American public life. For her to decline to answer such questions would be not only to contradict herself but to undermine the valuable opportunity for a serious discussion of the role of courts that her nomination presents.
Because I know Solicitor General Kagan to be a person of integrity, I do not expect her to attempt to evade questions whose legitimacy she affirmed when the nominees of previous presidents were under consideration. Moreover, with an overwhelming Democratic majority in the United States Senate at the moment, her candor would be unlikely to place her confirmation in jeopardy.
As Dean of Harvard Law School, Kagan’s openness toward the serious engagement of competing points of view led to discussions that enriched the intellectual life of the community she served. By making possible a serious discussion of the vital question of the role of courts in our constitutional system she is in a position to confer an equally-valuable gift on the nation.
This is no time for her to go silent.