President Barack Obama has nominated Solicitor General Elena Kagan to serve on the Supreme Court. Kagan, who served as the Dean of Harvard Law School from 2003 to 2009, would be the first justice without judicial experience in almost 40 years and has very little record on her judicial views.
Despite her lack of judicial experience, she is not a stranger to the Senate confirmation process. In fact, in 1995 she authored an article on judicial confirmations for the University of Chicago Law Review where she wrote:
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 nominees set of constitutional views and commitments.
On this point, we find agreement with Ms. Kagan. As we documented first with the Justice Sonia Sotomayor confirmation hearings, and again with the University of California at Berkeley law school Associate Dean Goodwin Liu hearings, President Obama’s leftist legal nominees have been completely unwilling and unable to defend their liberal legal views from Senate questioning. Instead they have retreated or renounced their past writings in an all too familiar spectacle that Kagan has said: takes on an air of vacuity and farce. We sincerely hope that Kagan continues to reject this model and that the U.S. Senate fulfills its proper advise and consent role. Responding to the news of Kagan’s nomination, Former Attorney General Ed Meese released the following statement:
First and foremost, any nominee to a lifetime appointment to the United States Supreme Court must demonstrate a thorough fidelity to apply the Constitution as it was written, rather than as they would like to re-write it. Given Solicitor General Kagan’s complete lack of judicial experience, and, for that matter, very limited litigation experience, Senators must not be rushed in their deliberative process. Because they have no prior judicial opinions to look to, Senators must conduct a more searching inquiry to determine if Kagan will decide cases based upon what is required by the Constitution as it is actually written, or whether she will rule based upon her own policy preferences.
Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the despised and disadvantaged. The problem with this view which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law is that it allows judges to favor whichever particular client they view as despised and disadvantaged. The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws.
Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.