Elena Kagan for SCOTUS: Not a Battle Worth Fighting


Photo by Kristen Bons
On Monday, President Obama announced his nomination of Elena Kagan for the Supreme Court of the United States. Nine players sit on the bench of the highest court in the land, and they play for life. It's a more powerful position than behind the desk in the Oval Office when you think about it.

Those nine justices interpret our laws and our Constitution, and the buck stops with them. Because it's the highest court we have, there's nowhere to go for an appeal. The process for overturning a Supreme Court decision is messy and sticky and basically next to impossible.

So it stands to reason that we should aim to have wise men and women on that bench (Latina or otherwise). When a sitting justice decides to retire, it's the President who nominates his or her replacement, and the Senate that confirms the appointment in a confirmation hearing. The last time the Senate denied a nominee was over 20 years ago, with the rejection of Robert Bork, presumably for his conservative ideology.

Since then, nominees have learned to not be quite so outspoken or controversial during the televised and widely scrutinized hearing process. Ms. Kagan herself has criticized these judicial confirmation hearings as a "vapid and hollow charade." She wrote in a book review in the mid-1990s that "Senators effectively have accepted the limits on inquiry ... repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Because of the caution used by nominees in their answers during these hearings, Senators (and those of us at home trying to educate ourselves) tend to rely on the person's judicial record. How they ruled on past cases gives plenty of insight into their views on things like marriage rights, gun control, and abortion, to name a few. And it gives us a glimpse of how they might rule on the Supreme Court.

What's interesting about Elena Kagan is that she has never served as a judge, so we can't examine her record in that capacity. That's not to say that she's inexperienced or unqualified for the job. She did serve as the dean of Harvard Law School and is currently the US Solicitor General, the person appointed to represent the US government in cases before the Supreme Court. It's just harder to interpret how she might rule on cases that make their way to the Supreme Court.

Although justices are to remain impartial to their own personal convictions and stick to the book when deciding on cases, it's not a secret that conservatives and liberals view the Constitution in fundamentally different ways. Take the second amendment for example. Generally speaking, conservative judges will argue that the second amendment grants all citizens the right to bear arms. Liberals would say that that only applies in certain circumstances (i.e., a well-regulated militia).

Given that Ms. Kagan has been nominated by Barack Obama, the most liberal President in our country's history, I'm willing to bet that she leans to the left. So do I, as a conservative capitalist Christian, have a problem with this? In a word: No.

Of course I'd rather have another Constitutional originalist like Scalia or Alito on the bench than a Harvard Law liberal. That goes without saying. But I'm a firm believer in picking your battles, and I don't believe this is one worth fighting. This isn't going to change the make-up of the court. One liberal justice -- John Paul Stevens -- is retiring, and another liberal will take his place.

And now I'm off to focus my attention on something worth fighting against -- like Cap and Trade.



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nonmember avatar Owen

"I'm willing to bet that she leans to the left. So do I, as a conservative capitalist Christian, have a problem with this?"

This question implies that capitalists and/or Christians have a problem with the left. But all of our presidents who have been on the left have also been capitalists and Christians (except a couple of the deist Founders). Government regulation does not equal socialism, just as all presidents have enforced government regulations and all Congresses have passed regulations.

Siste... Sisteract

It's nice that people want to be educated, but since there is zero populace input used in decisions at this level, it's all really moot. Knowledge produces zero power, with regards to this particular decision.

nonmember avatar Melissa

First, to Jenny -- it's nice to see an articulate and intelligent approach to this issue.  I can certainly see why conservatives wouldn't be lining up to support Kagan, but at the same time, it's nice to see a rational attitude about it.  Because you're right, while it is hard because Kagan does not have a judicial record, it's unlikely that President Obama has chosen someone who is likely to lean towards the right side of the spectrum.  I, personally, had about the same view of Roberts, who had served all of 18 months on the DC Circuit (assumed he was conservative; not sure to what extent; but he was undeniably qualified).

And to Sisteract, I don't completely agree.  I believe Harriet Myer's nomination was withdrawn, in part, over public outrage that she did not seem suitably qualified for the position.

lovin... lovinangels

my very preliminary research.... very very very... seems to peg her as more moderate than you'd expect. I've seen that she is pro gay marriage in places that are less than proof worthy, but gay marriage isn't something I believe the gov. should have a say in anyway.

so ho hum back about the day we go. I agree there are better things to focus our energies on, however, if I'm not involved I have no right to complain, so I will do my due diligence, and possibly write my senator if I feel so challenged.  Does it matter? perhaps not. But it does make for fun debates and cocktail chatter.

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