On Elena Kagan

Maybe my most relished part of our government's Constitutional role is that of the President to nominate and the Senate to advise and confirm, or deny, those judges and justices to the federal judiciary. In addition to being a rare occurence, this situation also presents an opportunity for deep discussions and analyses, both in the news and in committee hearings, on the Constitution and laws of the land and how they affect our lives, good or bad. On this point, I agree with the latest nominee to the Supreme Court, current Solicitor General Elena Kagan, who wrote in a 1995 University of Chicago law review the following:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. ... [T]he fundamental lesson of the Bork hearings [is] the essential rightness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments.

I also want a serious discussion of the issues and viewpoints. I want a legal analysis. I want an education. I do not want a growing cynicism of government. I have grown weary of hearing or watching all nominees since Bork, to some degree, dodge questions of a political nature that as they typically say "may come before this court in the near future." I suspect it is due to the fact that they well remember what happened to Bork and do not want to be rejected by the Senate or "Borked" for taking firm stands on those political issues as he did. For instance, Bork was explicit on the Constitution's silence on the issue of abortion. While he probably expected that he would "fall on the sword", I think he knew, or hoped, the debate would be good for our Constitutional republic.

This debate on political issues will be even more important with Elena Kagan since she has no judicial experience. Not in over 40 years has someone been nominated to the Supreme Court without some experience on the bench. While this is not and should not be a deal-breaker, the lack thereof provides Senators with no idea how she will interpret the Constitution and laws of the land. Another advantage of judicial experience is that judges and justices usually refrain from taking sides on political issues for fear of having to recuse themselves at a later date if a related case comes before them. She has been free to take sides on political issues up until now, as we all have a right to do, so it is fair game, and the only game, for Senators. Will they take her advice as they advise her?

I will gladly take her advice as I hope Senators do. Here is one example. How does she resolve her view that schools can violate a law, known as the Solomon amendment, by taking federal money while barring voluntary military recuitment from its campus? As Dean of Harvard Law School, which took $517 million in 2005-2006, she not only disagreed with the law, she fought it all the way to the Supreme Court, which soundly rejected the claim, through an organization called FAIR, or Forum for Academic and Institutional Rights. It is fine with me if she, as a private citizen or even the dean of an elite university, disagrees with that law or with military recruitment of any kind. However, should not that frustration be directed at changing the law through elected representatives and not whimsical violations? As with most government funding, there are strings attached. If she is elevated to a Supreme Court that hears a similar case, would she rightly recuse herself or rule in favor of the next Ivy League school that violates that law?

Finally, here is another example. In another law review article, she expressed a belief that the courts exist to pay deference to the "despised and disadvantaged." Should not the law, and the interpretation thereof, be blind to race, color, creed or socio-economic conditions? This is how the equal protection clause is honored. If the "despised and disdvantaged", whoever they may be, are violating the law, should not the courts rule against them and in favor of those in the right, no matter what their race, color, creed or socio-economic conditions?