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The Senate
The interim period has closed, and as intervals between a nomination and the Senate Judiciary Committee go, this one was rather tame and uneventful. The opposition has identified some issues that they hope might resonate with the American public and at least one senator has already declared his opposition. Nothing, however, has energized the opposition and this nomination has had the lowest profile of any in this decade. At this stage of the process, failing any remarkable new revelations in the hearing, the confirmation is a virtual certainty. Let's just hope that Kagan and the senators can rise to the level of discourse envisioned by the nominee in her 1995 article on the confirmation process. (See The Court blog of June 25.) Monday - Day One (Lead-in)Day one will feature the introduction of Kagan to the Committee by the two Massachusetts senators, Democrat John Kerry and the newly elected Scott Brown, a Republican. The latter's statement will reveal perhaps whether this nomination has any hope of gaining bipartisan support. The nominee's statement provides an opportunity for her to address on her own terms concerns that might have been raised by the opposition during the interim period. She might take the opportunity to iterate her view of what the confirmation process should be and what role she is willing to play in a useful and educational dialogue. It should prove interesting. The first day is also devoted to opening statements from each of the senators on the Judiciary Committee, a process of interest primarily to the senator delivering the speech and the staff member who researched and wrote the initial draft. What you might wish to get from them is an indicator of what role each senator intends to play in this process. Check our the Senate Judiciary Committee link for a discussion of role playing by the committee members. Monday - Day One (Summary)The behavior of the senators in a confirmation hearing make more sense if you understand that they are role playing. Positive partisans have two different tasks to perform: promote the virtues of the nominee and rebut the charges and negative assertions of the opposition. Many of the Democrats stepped forward to assume that role in their opening statements: Leahy, Feinstein, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, and Franken. The role of negative partisan traditionally falls to the ranking member of the opposition, and Jeffrey Sessions stepped to the plate to perform that role. To a less strident extent, he was joined by Grassley and Kyl. For the Republicans, two others (Hatch and Cornyn) might best be described as negative validators, rather certain they will vote “No” and building the case against the type of person they wouldn’t want as a justice, while not yet identifying Kagan as that type. The Democrats have their own validators (Kohl, Feingold, and Specter), identifying the traits they see as positive in a justice, but not yet linking those traits to Kagan. They will, though, before the hearing is finished. That leaves two Republicans that, in their opening statements, sounded more like evaluators than anything else. Not surprisingly, one is Lindsay Graham, the only Republican who voted to recommend Sotomayor’s confirmation. The other, surprisingly, is Tom Coburn, an expected “No” vote who acknowledged up front Kagan’s qualifications, a point not yet yielded by the Republican negative partisans and validators. Coburn seems at this point willing to be persuaded by Kagan that she might comport with his vision of a justice despite her liberal leanings, though I suspect not. There is some possibility Coburn will adopt an advertiser role, attempting to lobby Kagan to subdue her ideological preferences in the name of impartial justice and judicial restraint. Republican Senator Scott Brown’s introduction of Elena Kagan was gracious and yet left sufficient wiggle room for Brown to oppose the nomination. He acknowledged that he was performing a traditional courtesy of the home state senators in introducing the nominee. And while he suggested Kagan was qualified to serve on the Court, not unlike Senator Coburn, he sounded more like an evaluator, wanting to see how Kagan responds to questions regarding her judicial philosophy and on specific constitutional issues. Highlights of the Opening StatementsSenator Orrin Hatch cited Chief Justice John Marshall’s opinion in Marbury v. Madison as support for constitutional constraints on any activism of the Supreme Court. Strange, given that Marshall’s words were at odds with his action, which established judicial review, nowhere specified by the Constitution, and one of the single-most activist decisions in Court history. Democrats and Republicans are now sparring over judicial activism. It would appear that there is nothing worse than an activist on the Court. Unfortunately for those who believe that, there are nine potential activists there already. Democrats are now combating more effectively the long-standing effort by Republicans to link activism with liberal jurists. This may be the confirmation hearing in which the American public begins to understand that activism or restraint is neither the province of the right or the left. Tuesday/Wednesday — Questioning KaganIt appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently. Republicans, especially Senator Sessions, wasted considerable energy on the military recruitment issue at the Harvard Law School under Kagan's deanship. It had no relevance to serving on the Court and only helped to establish her character as one who successfully sought a compromise position between a rock and a hard place. A standard Republican attack line for more than 40 years has linked judicial activism with liberal political values. This argument has always been specious, but Democrats have finally begun to make headway, through the work of the Rehnquist and Roberts courts, in showing that activism is basically the prerogative of the Court majority, whether liberal or conservative. Senator Hatch's effort on Wednesday to argue that the Citizens' United v. FEC case should not be characterized as judicial activism only served to expose another political construct that has little meaning, namely, "results-oriented" philosophy. According to the conservative line, liberals use the courts to seek particular results and in so doing refuse to be constrained by the intent of those who created the provisions of the Constitution or of the laws passed by Congress. The problem with this interpretation comes from the link between the results one wants and the capacity of both liberal and conservative intellects to rationalize that result in terms of fundamental legal constructs. Hatch doesn't see Citizens United as evidence of judicial activism because the result was justified. It doesn't matter that the conservative majority substituted its own questions for those presented by the parties to the case, overruled or disavowed precedent from more than half a dozen cases, and overrode the will of Congress, the result was justified, indeed required in Hatch's mind, by the First Amendment. Hatch and Grassley are not hypocrites, I suspect; they truly believe the First Amendment leads one to the result in Citizens United rather than realizing how the result they prefer is being rationalized through one of different possible interpretations of the First Amendment. There are limits to the results one can reach, of course, but in complex cases of the type received by the Supreme Court, reasonable arguments permit different results, and it is the preferred result that so often drives the reasoning and justification.
Updated on July 1, 2010 by GW |
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