Senator John Cornyn
(R-Tx.) is spending his week on the Judiciary Committee at Elana Kagan's hearings. He spoke with reporters this afternoon about the nominee and his overall judicial philosophy.
I want to hope that she's serious about the difference in the role between legislator and judge...but the point is that you can repeal the law if you're in Congress, but you don't repeal judicial decisions... you have to go through this whole laundry list of policy considerations in deciding whether its appropriate to overrule... a case. I take modest comfort in her acknowledging that there is a difference.
On the post-Roberts “umpire” analogy:
I think its a useful analogy, but obviously judicial decisions aren’t decided in a strike zone. I think that judging involves a little more discretion than umpiring. [Roberts] was trying to suggest that there should be an objective standard for what constitutes good judging as opposed to making it up as you go along. Others think that if you've got lifetime tenure...hey, let the good times roll.
On whether he will support a Republican colleague’s decision to vote for Kagan (Sen. Lindsey Graham
, R-S.C., has said that he intends to vote for her).
It’s an individual choice. I haven’t publicly stated my intentions on this. I felt like in fairness to the nominee, I want to wait until all the witnesses have testified. I think we're basically being asked to speculate. We cant know what she's like. Souter, Brennan, and others have been sort of surprises — they haven’t turned out to be exactly what the person who nominated them thought they would be like. At best, we're just left making an educated guess. [A position on the Supreme Court] is a lot of power for just being left with simply making an educated guess.
On Kagan’s interpretation of the Commerce Clause, which is being used to justify the Constitutionality of Obamacare:
She seems to suggest that the Commerce Clause could be read so broadly that anything can be read to ...be within the gambit of the federal government... that doesn’t leave a whole lot of room for the states and individuals.
On why it’s important to have SCOTUS trials even though its a ridiculous charade:
To the extend that people watch it, and listen to it, and pay attention to it, I think it’s educational. ...I think it serves an important public education function. When I was on the TX supreme court, we had camera. ...I think people are afraid of OJ Simpson kind of trials, but an appellate argument is not a trial.