Judging Elena Kagan

She’s too liberal, too conservative, too single, too smart, too … softball? She hasn’t been a judge. She has worked for two presidents. Which of these disqualifies Elena Kagan as a potential Supreme Court justice? Which of these is even relevant to her confirmation?

Reporting on judicial appointments focuses on gossip and on handicapping the horse race. Thus, the blogosphere lit up with speculation about Elena Kagan’s sexual preferences, based on nothing more substantial than a photo of her playing softball:

If you’re an unmarried woman over 40, you’re probably gay.

If you are an unmarried woman over 40 carrying 15 extra pounds, you are totally gay.

If you are a stocky, unmarried woman of whatever age who plays softball — gay, gay, gay.

And if you’re that woman who’s also smarter than most of the boys? Beyond gay, sweetheart. You are scary.

Aside from gossip, much of the coverage is of the horse race variety – counting the votes, assessing the importance of confirmation to Obama’s political strength, predicting the length of the debate.

The constitution says that the president appoints Supreme Court justices “with the advice and consent” of the Senate. Consent means approval by majority vote, but — as we have seen repeatedly in the past 16 months — a filibuster can stop anything that can’t muster at least a three-fifths majority.

That makes the Supreme Court appointment a highly political football, like the dozens of appointments to district and appellate courts that have been held up by the Senate for months. Decisions on judicial appointments, from trial courts to the Supreme Court, seem now to be more about political payback than judicial temperament or qualifications.

While the gossip-and-horserace reporting dominates a lot of the popular press, there is better information out there. Some of the places to look for coverage that  goes beyond the gossip-and-horserace variety are:

• SCOTUSBLOG has had some interesting posts, and will certainly have more. (If you’re on Twitter, follow SCOTUSblog)

Senate Judiciary Committee website has extensive official records of the confirmation process.

•  Twitter: #scotus and #kagan hashtags have lively interchanges, though the latter has more garbage than information.

• University of Chicago law professor Geoffrey Stone knows both President Obama and Solicitor General Kagan, and frequently contributes his incisive analysis and reflections on HuffPost and elsewhere.

• If you’d like to recommend other favorite sources, please add a comment with links to those sources.

Federal judges are appointed, rather than elected, in part to insulate them from political pressure. While presidents may try to select judges who will be sympathetic to their political views, they can’t guarantee how the judges will rule, once appointed.

Chief Justice Earl Warren, for example, was a Republican prosecutor, attorney general and governor who was appointed to the court by Republican President Dwight D. Eisenhower. Yet Warren presided over an activist court that made school segregation illegal, ruled that a right of marital privacy protects the right of couples to use birth control, and greatly expanded federal protection of civil liberties. In response, the John Birch Society led an impeachment drive that lasted throughout the tumultuous 1960s.

Since then, judicial appointment process has been increasingly politicized. Today, both conservatives and liberals have problems with Elena Kagan. They will pose questions to her in confirmation hearings, trying to elicit her opinion on topics that may come before the court during the decades when she will be there. But justices need to be independent. Making political statements or statements about cases that could come before the court in the future compromise judicial independence.

The public today doesn’t think judges should be activists, according to a Quinnipiac public opinion poll. But, while they want judges to follow the original intent of the framers of the constitution, they also want judges to consider “changing times and current realities.” Of course, it’s hard to say whether those surveyed have a clear understanding of how the court works or what judicial activism is.

Constitutional law professor Geoffrey Stone explains:

Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.

This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.”

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