Ms. Kagan’s hearing did nothing to temper the picture of judicial activism painted by her record. Despite the excessive media and political attention one can receive, a confirmation hearing is only a small part of the picture for any nominee, and Supreme Court hearings have become less and less meaningful, with nominees prepared and prepped to provide answers that are more form than substance. Ms. Kagan, for example, referred to any previous Supreme Court decision as “settled law,” whether it was two days or two centuries old. Her pledge to give such “binding precedent . . . all the respect of binding precedent” told us nothing more. In effect, she said that a decision is a decision and a precedent is a precedent — not much to go on.
Ms. Kagan chose not to answer many questions by various senators about a range of issues. I spent 30 minutes asking her about freedom of speech, campaign-finance reform, and the Citizens United v. FEC case, which she argued before the Supreme Court. I asked for her own views, but she instead told me what Congress said, what she argued before the Court, and what the Court held. I already knew those things because I had read the statute, the transcript, and the opinion. She would not even admit that she had in fact written the 1996 memo about partial-birth abortion that not only bore her name but included her handwritten notes. After three attempts, all she would say is that it was in her handwriting; I suppose that left open the possibility that it had been forged.
A nominee, of course, may choose to use such code words and evasions. For Ms. Kagan, however, this choice stood in stark contrast to her previous strong critique of Supreme Court confirmation hearings. After serving on the Judiciary Committee staff during Justice Ruth Bader Ginsburg’s hearing, Ms. Kagan wrote in a 1995 law-journal article that Supreme Court confirmation hearings had become a “vapid and hollow charade” and taken on “an air of vacuity and farce.” The solution, she said, was for a nominee to discuss “the votes she would cast, the perspective she would add, and the direction in which she would move the institution.” Ms. Kagan refused to discuss any of these at her own hearing, prompting the Associated Press to ask the question on many Judiciary Committee members’ minds: “What happened to the Kagan standard?”
Liberty requires limits on government; it always has, and it always will. That includes limits on judges. Measured against that standard, Elena Kagan’s record shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court. Her hearing offered nothing to neutralize the clear evidence of what kind of justice she will be.
Monday, July 12, 2010
From National Review Online: