By Ilya Shapiro
It’s been a long couple of days of hearings—three days, really, if you count Monday’s prepared statements (which I do because I had to read them all after a day of responding to big Court decisions)—and I’m still trying to separate in my mind the issues I care about from those less important and trying to remember some of the lighter moments that will color people’s recollections of these proceedings for decades. As I gradually sift through my notes and review key sections of testimony, here are some things that will stick with me:
- Kagan refused to identify anything the government couldn’t do under its Commerce Clause power. She recited over and over the limitations the Lopez and Morrison cases give, the power to regulate interstate commerce doesn’t extend to non-economic activity or that traditionally subject to state prerogative, but she refused to tell Senator Coburn that his hypothetical bill requiring Americans to eat fruits and vegetables was unconstitutional. “Dumb,” sure, but perhaps worthy of the deference to the political branches that she hailed again and again. Nor did she offer her own examples of unconstitutional bills.
- Not only is Aharon Barak, the philosopher-king Israeli judge, the nominee’s hero but so apparently is Oliver Wendell Holmes, whom Kagan cited several times for the proposition that broad regulations, even if unwise and infringing on individual liberty, is for the people to correct, not the courts. In response to Senator Kaufman’s questions about the pending financial market reforms, for example, she invoked Holmes and argued that while courts still have an important role in holding Congress to certain constitutional limits, they “should realize that they’re not the principal players in the game.”
- Putting together the above two points, conservatives may have hoisted themselves on their own petard by insisting for decades that “judicial activism” equates to acting without the sort of majoritarian deference Kagan full-throatedly endorses.
- The Kagan hearings were much more engaging than the Sotomayor hearings, even though they’ve gotten less press coverage in light of the continuing oilspill saga, Russian spies, Petraeus confirmation, and Senator Byrd’s death (and the World Cup!). The solicitor general is more articulate, has a better grasp of almost every area of the law (though Sotomayor probably wins on large swaths of criminal law), has a good sense of humor, and genuinely tried to answer questions. Just as Kagan admitted that judging was not a “robotic” task of applying law to facts, her presentation to the committee was anything but “robotic.”
- Still, Kagan failed the Kagan Standard set out in her classic “Confirmation Messes” article—which I’ve now read several times and am honestly struck by its perceptiveness. Her incessant repetition that all Supreme Court decisions are “well-settled law” that she would not “grade”—virtually the only parts of her responses, whether I agreed or disagreed, that annoyed me—has no principled basis. For example, she flat-out refused to answer this type of question: “Ms. Kagan, if you were on the Court in 1942, and setting aside considerations of stare decisis that may affect how you would rule in a current case presenting related issues, how would you have ruled in Wickard v. Filburn?” That to me is unacceptable. Yes, nominees should refuse legal issues that are likely to come before the Court, but asking about previous decisions is fair game.
- I’m disappointed but not surprised by Kagan’s position on use of foreign law. Yes, it’s never binding and, of course, you should use it in evaluating international treaties and conflicts of law situations, but it’s simply irrelevant to interpreting the U.S. Constitution. Yet Kagan consciously left herself plenty of breathing room to cite foreign law inappropriately.
- Finally, and I will be going over this section with a fine-toothed comb, in an instructive dialogue with Senator Coburn, Kagan disclaimed the idea of natural rights—looking pained at times to even understand what they are. “Does the Constitution give us our rights, or do they pre-exist government?” Coburn asked. Kagan evaded. “What about the discussion of the ‘inalienable rights’ in the Declaration of Independence?” he pressed. Kagan denied that the Declaration of Independence had anything to do with the role of a judge. This is sad, really, and ironic given that we’re heading into the Fourth of July weekend.
I do not yet know how I would counsel a senator to vote on Kagan’s nomination—she’s more than qualified in terms of legal knowledge, indeed better qualified in terms of temperament than to be solicitor general—but I know that I’m disturbed by much of what I’ve witnesses lo these last 48 hours. Last year at this time I suggested that the argument for Sonia Sotomayor’s confirmation was “not proven”
; she was fine at her hearings but did not carry her burden of persuasion. That may well be the case again.