Federal Judiciary

The question before Republicans is not whether they should block Kagan?s nomination to the Supreme Court: They cannot and they will not. The question senators must ask themselves is: Should Elena Kagan proceed to a decades-long career on the Supreme Court, and all the liberal activism that entails, with our blessing? Or should Republican senators, rather than acquiesce in her elevation to the court, instead make the case for a properly limited, constitutional conception of the judiciary and its powers?

For some guidance on that question, we ought to consult the nominee herself, who presently serves the Obama administration as solicitor general. In a 1995 article for the University of Chicago Law Review, Kagan argued for probing, detailed inquiry during Senate confirmation hearings for federal court nominees, writing: ?The kind of inquiry that would contribute most to understanding and evaluating a nomination is#...# discussion first, of the nominee?s broad judicial philosophy and, second, of her views on particular constitutional issues#...#seeing how theory works in practice by evoking a nominee?s comments on particular issues -- involving privacy rights, free speech, race and gender discrimination, and so forth -- that the Court regularly faces.? She has written that she found Justice Ginsburg evasive during her own confirmation hearings: ?I was frustrated by what I called Justice Ginsburg?s ?pincer movement? -- the tendency to say that questions were either too specific or too general to be able to answer, with little ground in between.? No doubt her views are evolving even as we write, just as they had evolved in the direction of obfuscation by the time she was nominated for solicitor general. But Republican senators now have the rules of the debate established for them -- by the nominee herself. Ask hard questions.

Would she answer such questions forthrightly? There are worrisome indicators that she would not. For instance, during Kagan?s confirmation hearings for her appointment as solicitor general, she wrote on a questionnaire: ?There is no federal constitutional right to same-sex marriage.? But, in follow-up questions, she suggested that she was only describing the current state of the law, not what the courts could or should do to change the law on the issue. Kagan could prove the vote that changes the answer to that question. Both Kagan?s critics and her admirers have read too much into her slippery, deceptively simple answer: Cornell law professor William Jacobson says that Kagan?s confirmation would mean that ?the hope of a nationally recognized right to gay marriage is over,? while others have cited that answer as evidence of a judicious temperament.

What conservatives should ask about Kagan is this: ?While there is no federal constitutional right to same-sex marriage today, we mostly have Antonin Scalia?s robust health to thank for that fact. What would stop Kagan from creating one, ex cathedra, once she is installed in her lifetime appointment to the Supreme Court? If there is some aspect of her judicial philosophy that would prevent her doing so, what is it? Is there a constitutional or legal reason that the Supreme Court could not create such a right, if it were so moved??

Given that the liberal bloc on the Supreme Court has a remarkably generous interpretation of its own powers to impose its values on the country, it is fair to inquire as to what Kagan?s values are. While her scholarly publishing is thin -- not Harriet Miers thin, but thin nonetheless -- her career as dean of Harvard?s law school offers some insight, particularly her efforts on behalf of those who seek to ban the United States military from college campuses in retaliation for its ?Don?t Ask, Don?t Tell? policy regarding homosexuals. As a dean, it was up to Kagan to comply with the terms of the Solomon amendment, which requires that U.S.-military recruiters be given the same campus access as any other employer. (It is an indictment of academic culture that this law is necessary.) But Kagan energetically opposed the law, to the extent of filing a brief in the Supreme Court case challenging the law?s constitutionality. Kagan?s future colleagues on the Supreme Court rejected her reasoning -- unanimously -- which should open up another line of questioning for senators.

Kagan called the ?Don?t Ask, Don?t Tell? policy ?repugnant? and ?immoral,? but repugnant to what? To her personal political sensibilities, or to the Constitution? Was that unanimous Supreme Court correct to rule against Kagan, or was it incorrect? She has referred to ?Don?t Ask, Don?t Tell? as representing a ?military policy,? but it was established through an act of Congress, and is therefore the American people?s policy. Should Joe Biden be banned from the Harvard campus for having voted for it? And what precisely is the constitutional weight of Elena Kagan?s repugnance or her sense of immorality? Kagan has been described as a pragmatist, but her most notable display of pragmatism was in abandoning her fight against the Solomon Amendment when it became clear that her crusade was going to cost Harvard a great deal of federal funding.

Republicans will be tempted to find common ground with Kagan on matters of national security. Her angriest critics on the left have noted bitterly that, on issues ranging from habeas corpus for War on Terror detainees to questions of state secrets, Kagan has offered legal arguments that might as easily have been made by a member of the Bush administration. But this is to be expected: Despite its rhetorical direction, and the occasional question of substantive policy, the Obama administration has, very wisely, adopted much of the Bush administration?s approach to counterterrorism. It has done this because President Obama, unlike candidate Obama, is somewhat constrained by the necessities of defending the nation from Islamist terrorists. That Kagan has offered Bushian legal arguments to support the Bushian aspects of current policy is something that Republicans should not read too much into. Presidents come and go, and so do wars: Supreme Court nominations are for life.

As a justice on the Supreme Court, Elena Kagan?s decisions would have the potential to outlive everything about the Obama presidency except its debts. Her nomination invites the asking of some tough questions, the toughest of which may be whether or not Republicans want to be on the record as going quietly along with Kagan and what she stands for. There are many reasonable ways to judge a Supreme Court nominee, but ?She?s the best we?re probably going to get from Obama? is not one of them.

Full post as published by Bench Memos - National Review Online on May 11, 2010 (boomark / email).