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Kagan addresses political bias, First Amendment as confirmation hearings continue

By Sarah Miley

[JURIST] US Supreme Court [official website] nominee Elena Kagan [JURIST news archive] addressed the effect of political bias on the bench as the Senate Judiciary Committee [official website] entered its third day of confirmation hearings [materials]. Kagan stated that the nation suffers when the court is split and appears to be politically driven but stopped short of criticizing the Roberts Court [Oyez backgrounder]. Senator Sheldon Whitehouse (D-RI) [official website] chided the Roberts Court for its numerous 5-4 decisions, claiming the the rulings are based on political leanings instead of the constitution:

The court can exercise discretion wisely, but to do so it must balance competing constitutional values, not just apply a favored ideology. And the court can bring truly justice, but only if it approaches each case without predisposition or bias. Unfortunately, the conservative wing of the current Supreme Court has departed from those great institutional traditions. Precedents, whether of old or recent vintage, have been discarded at a startling rate. Statutes passed by Congress have been tossed aside with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly.

Kagan told Whitehouse that she did not agree with his suggestion that the current court is politically motivated, holding that the opinions of all nine justices are made in "good faith." While Kagan skirted addressing the ideologies of the Roberts Court, she did address the importance of not bringing politics to the bench. "Every judge has to do what he or she thinks the law requires. But on the other hand, there's no question that the court is served best and our country is served best when people trust the court as an entirely non-political body." Kagan later discussed the balancing test she deems necessary in resolving First Amendment [text] lawsuits. Answering an inquiry from Senator Amy Klobuchar (D-MN) [official website], Kagan stated:

Even as we understand the absolute necessity for protection of speakers from libel suits, from defamation suits, we should also appreciate that people who did nothing to ask for trouble can be greatly harmed when something goes around the Internet, and everybody believes something false about a person...That's a real harm, and the legal system should not pretend that it's not.

Senators expected to conclude questioning on Wednesday, and they will hear from several outside witnesses Thursday.

Kagan's confirmation hearings began Monday [JURIST report] with Democratic and Republican senators offering contrasting interpretations of Kagan's judicial philosophy and lack of experience on the bench. On Tuesday, Kagan defended her decision to restrict military recruiter access [JURIST report] to Harvard Law School [academic website] while she was dean. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.

Full post as published by JURIST - The Paper Chase on June 30, 2010 (boomark / email).