President Barack Obamas nominee to the Supreme Court, Elena Kagan, sits before the Senate Judiciary Committee this week. Kagan comes with the thinnest record of any nominee in decades. Not only has she never served as a judge, but she also has precious little courtroom experience, giving senators little insight into how she would approach the law.
The Need for Tough Questions
When nominated for the post of solicitor general 15 months ago, she had never argued a case in any court. Since the solicitor generals office represents the United States before the Supreme Court, her appointment was viewed by some as on-the-job-training for a subsequent promotion to the Supreme Court.
And while her academic posts as professor and dean of Harvard Law School are prestigious, her academic writings are paltry just six law review articles.
Kagans supporters argue that several 20th-century justices, including William Rehnquist, Earl Warren and Felix Frankfurter, lacked judicial experience. But these justices had substantial legal experience and academic records. Rehnquist had 16 years litigation experience before taking a post at the Justice Department. Warren had been a prosecutor and attorney general of California, which he also served as governor. Frankfurter had published 45 articles in the Harvard Law Review alone. Kagans record does not compare.
Short Record Looks Liberal
What can be gleaned from her limited record is a decidedly liberal approach to politics and law.
Her decision to discriminate against military recruiters on Harvard’s campus was appalling, and luckily, unanimously rejected by the Supreme Court as unreasonable.
Her recommendation to Justice Thurgood Marshall that the Supreme Court not hear a case challenging the District of Columbia’s complete ban on handguns because she was unsympathetic to the cause shows her lack of concern for the Second Amendment.
Her openness in academic articles and in advocacy to sanction broad government regulation of speech constitutes further evidence that she leans significantly toward the left on key issues. More worrisome, this record suggests that she lets her policy preferences inject themselves into her legal judgments.
Kagans praise for a vision of constitutional law that she describes as demanding above all else an earnest care for the despised and disadvantaged is most troubling. This view sounds similar to President Obamas much-criticized empathy standard, in which he suggested that judges should rule based on their feelings about the parties. Both expressions sound remarkably unlike the oath of office for a Supreme Court jus¨tice, which states, I will administer justice without respect to persons, and do equal right to the poor and to the rich.
While these statements are disconcerting, there are important questions of judicial philosophy on which Ms. Kagan has been silent. For example, to what extent, if any, does she believe that foreign law should be used to interpret the Constitution? Does she believe that the law should be interpreted as written, or should a judge treat law as subject to change by the courts?
Senators need to ask these and other questions. And, to avoid what Kagan has derided as the farce of confirmation hearings, the nominee needs to actually answer them. Only then will senators be able to determine whether she merits confirmation to the highest court in the land.