A Measured Approach on Kagan

In reading some of the early comments about the nomination of Solicitor General Kagan on this site, I have been troubled by the reactions of some.  While I normally respond to such things in the comments, I thought this issue important enough to warrant a diary entry.

For starters, let me be clear that at this point I neither support nor oppose the nomination.  I am necessarily suspect of any of the President’s judicial nominations in light of his campaign comments with regard to how he would select his nominees.  His selection of now-Justice Sonia Sotomayor only served to exacerbate those concerns.  In Sotomayor’s case, though, there was a history of writing and speaking that suggested that she was unfit to serve, most notably her statement that the courts are where policy is made.  Her fundamental misunderstanding of the separation of powers alone was sufficient to disqualify her from the bench.  Alas, it did not.  In this nomination, though, no such history exists, or, more precisely, if there is such a history, it has yet to emerge publicly.

One concern that people have expressed about her nomination is her lack of experience as a judge.  The Supreme Court, they will argue, is not a training ground.  That’s fair enough.  I disagree.  If I had my way, the Supreme Court would be a bunch of average literate Joes applying a two-hundred plus year old document to the facts before them rather than people who have spent years engaging in mental gymnastics to bring about results that should be determined by the political process.  That aside, though, a lack of experience is a legitimate argument against her confirmation.

Another concern that people have expressed is her role in Harvard’s policy that prohibited recruitment by organizations that discriminate based on sexual orientation.  They view this as “anti-military” and have serious questions about whether she may demonstrate such a bias in her rulings and/or  whether she is simply not patriotic enough to serve in the federal government.  Again, I disagree.  I consider those to be social/political opinions, which it is important to remember are entirely separate from judicial philosophy and temperament.  Even so, I can not and will not begrudge people of those concerns.  It’s a reasonable argument against her confirmation.

Beyond that, though, there have been some seriously troubling comments made by people who are making assumptions that may be reasonable but are yet unproven, those who are equating political opinions with judicial ones, and those who are hoping to rewrite the Constitution.  Three examples jump out:

Kagan will be confirmed…

Simply because Republicans such as Orrin Hatch don’t believe in filibustering these people without huge cause. Kagan is ultraliberal…but unless there is something I haven’t seen, she will get the votes needed.

Of course, beware nominating someone without a record…remember Souter and Warren.


Neoavatara makes two glaring errors here.  First, he (I apologize if I’m mistaken on your sex, Neoavatara) asserts that Kagan is ultraliberal without offering any evidence to support the claim.  While it is reasonable to assume that she is, we don’t know that and can’t prove it.  We risk losing tremendous credibility when we make assertions that we can’t back up.  Second, “ultraliberal” is a term – if used – that is best left to the political spectrum.  An independent judiciary is absolutely essential to our system of separation of powers, and equating political views with judicial philosophy or temperament is dangerous.  If we do so, we run the risk of having a results-oriented judiciary.  It would be much better to have someone with the political views of Ted Kennedy and the judicial philosophy and temperament of Antonin Scalia than someone with the political views of Sen. Tom Coburn manipulating rulings to suit his ends.  I’m not saying Sen. Coburn himself would do that, just illustrating the point.  Strict constructionists can sometimes reach decisions that don’t result in conservative political ends, and may easily be at odds with their own political inclinations.  That is the constitutional structure that we set up, and it is essential to any system that holds dear the rule of law.

A second troubling comment is the following:

prolifers should oppose Kagan

Obama will nominate pro-abortion activist Elena Kagan this morning to become the next Supreme Court justice. Sign the
LifeNews.com/Students for Life petition to tell your U.S. senators you oppose her nomination.

Like Neoavatara, sertelt equates political opinions and judicial ones.  There are plenty of pro-choice lawyers who recognize that Roe was a poor decision and should be overturned.  There are also plenty of pro-lifers who would overturn it mainly because of the moral consequences of the ruling rather than the Constitutional shortcomings.  Our system would be best served by the former in the judiciary and the later in the electoral process.

What’s more sertelt offers no evidence for the assertion.  If I had to guess, I’d say that Kagan is likely pro-choice based on her associates.  I can’t make that assertion definitively, though, because I have seen no direct evidence of it.  90% of my friends are liberals, yet it would be a mistake to assume that I am one.  Let’s stick to assertions that we can back up with facts.

The final quote is the one that I found most disturbing.

First Things First

No.  Barack Obama is the President of the United States.  He won.  We lost.  We also lost a majority of Senate seats, meaning that the Democrats, should they stay even reasonably unified, have the right to confirm her, along with whatever Republicans may see fit to do so.  We have every right to fight the nomination, but holding it off until after the new Congress is sworn in is not an option.  That’s what the Constitution requires.

In closing, I’d like to offer a word of caution as to what could have happened, and what still could.  We could have seen someone who has already shown contempt for the Constitution.  We could have seen a redux of the President’s first Supreme Court nominee.  We could have before us someone who would be nearly certain to be a results-oriented Justice.  The Solicitor General may yet prove similar to Justice Sotomayor, and we must watch closely over the next couple of months to see if she is.  It would even be fair to say that the burden of proof is on her to show that she will respect the Constitution and will apply it to the cases before her rather than manipulating or ignoring it to bring about a desired result.  Anyone currently making assertions that they fail to back up, though, will only cost our side credibility as the process moves forward.  In a worst case scenario, it could even end up defeating a nominee who might respect the Constitution and lead to the nomination of someone who would readily set it on fire.