Questions For Elena Kagan

Helen Whalen Cohen
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Posted: Jun 29, 2010 4:40 PM
In a recent column, George Will has posed several questions for Elena Kagan. Here are a few:

• Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing on U.S. courts' interpretations of the Constitution or federal laws?

• Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?

• Justice Thurgood Marshall, for whom you clerked, said: "You do what you think is right and let the law catch up." Can you defend this approach to judging?

Read the rest here.