Sunday, June 27, 2010

Elena Kagan and the confirmation debate

It is frustrating to listen to the ignorant and insipid public discussion of Supreme Court nominees. 

Almost all of it is framed in the context of the liberal/conservative policy debate, as if the Supreme Court is the third branch of the legislature. The debate is all about policy and outcomes: "fairness", "social justice", "women's rights", abortion (pro or con), ad infinitum. 

It is as if the Constitution and 220 years of judicial precedent are like some corporate by-laws that collect dust in a filing cabinet. Even the President, a student and teacher of Constitutional law, almost invariably frames court decisions in a policy context.

There are, to my unschooled knowledge, really only four ways of looking at Court decisions and nominees:

1. Original intent or strict construction: A justice must ask either what does the constitution say about this question and/or what did the framers intend it to mean when they wrote it. If policy outcomes are undesired (e.g., Dred Scott), the Constitution can be amended, but not from the bench.

2. Deference to the other branches and to precedent: The Court should defer to the people's elected representatives and to prior court decisions except in egregious circumstances, and should not go off on activist tangents without sufficient and clear Constitutional basis.

3. An evolving document: The Court should interpret the Constitution in light of present day society and thus may "discover" rights (such as privacy) which may not be found in the written text but which exist within the "penumbra" of the text.

4. A policy tool: This is the intellectually bankrupt but most popular view that seeks to make the Court a free-range legislature. Society has moral desiderata (social justice, for example), and the Court should take such goals (the real world impact, i.e., outcomes) into consideration as ends in themselves in deciding cases: Favor poor people over corporations, limit campaign contributions, protect the environment, be nice to endangered species, etc. This is the approach most favored by 99% of the media including most editorial boards of liberal or conservative bent. 

I would hope that Kagan will be allowed to address the proper role of the court at her hearings. She should (1) deny that the justices are legislators who should put desired outcomes over law; (2) explain that her political views and experience are completely irrelevant to her view of the law; and (3) articulate a coherent judicial philosophy. I have no doubt that she will pick #3 (the evolving Constitution) with a dash of #2 (deference to the democratic process and precedent). That's the typical reasoned liberal approach. 

[It is also absurd to tar Kagan or any other Solicitor General (see Robert Bork) with her advocacy positions as Solicitor General, as if she were her own client instead of representing the United States before the court. If Obama wanted to jail every Fox News correspondent on earth, it would be her job to make the case before the court, and her job as a justice to throw it out.]

I hate to say it, but I think that the President may be a sincere believer in #4: that moral desiderata and policy outcomes should trump precedent or intent. He  said almost as much when he voted against Alito and Roberts:


When I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

When you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.

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