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VOL. 12, NO. 4June 8, 2010
Be Ready for Obama's Supreme Court Nominee!, II


Since our last Court Watch Briefing, we have learned the identity of Barack Obama's second U. S. Supreme Court nominee. Obama is tapping another woman — Elena Kagan, former Harvard Law School Dean and now U. S. Solicitor-General (the national government's chief trial lawyer in U. S. Supreme Court cases).

Conspicuously absent from Kagan's resume is any judicial experience. Therefore, one of our best opportunities to learn Kagan's philosophy is at the Senate hearings on her nomination. Set to begin on June 28, these hearings may mirror the last few SCOTUS nominee hearings where the goal of key Senators seemed to be to hide the nominee's philosophy, rather than reveal it.

But lurking in the shadows of this strategizing are the most basic questions of all: what happens to the right of the electorate in a republican form of government to know in advance the views of those who would lead them (especially the Court, which is now clearly a lawmaker, though clinging to the fiction that it is only a law-interpreter)?

The battle over judicial nominees is not really over people, but over principles; it is not just a fight for the Court, but for the country. Therefore, the "fictions-proclaimed-as-facts" by the Kagan campaigners raise issues extending far beyond this one nomination. In this Briefing, we examine three of the arguments mostly likely to be raised by Kagan supporters against Senators seeking to learn what Kagan's philosophy really is.

Fiction #1: Questioning nominees on constitutional questions "threatens to radically politicize the confirmation process." Fact: Politicizing the judiciary is a moot issue. The federal judiciary has been politicized from its earliest days — witness the Jeffersonian impeachment effort (for political reasons) against Federalist Justice Samuel Chase in 1804-1805. Today's Court is even more radically politicized. As former Cornell Law School Dean William R. Forrester declared in a 1977 ABA Journal article, "[the Court] can no longer be described with any accuracy as a court, in the customary sense. . . . its primary function is not judicial but legislative" (a "political body," by definition).

Politicization of state judicial elections was addressed in Republican Party of Minnesota v. White (U. S. Supreme Court, 536 U.S. 765, 2002 and Eighth Circuit Court on remand, 416 F.3d 738, August 2, 2005). Relevant to the federal judicial selection process as well, these opinions highlight interest-group activity as a key symptom of "politics." Yet interest group leaders today are among those most loudly crying "foul" over the politicizing of the Kagan nomination. The lady doth protest too much, methinks.

Fiction #2: "Questioning Court nominees on constitutional questions threatens the independence and impartiality of the federal courts." Fact: It is neither possible nor desirable to find a judge whose mind is a tabula rosa — completely impartial — by the point in his career when he would be nominated for the Court. Indeed, the definitions of "independence" and "impartiality" are derived from one's philosophical and constitutional positions. (Does anyone really believe that Justice Ginsburg is, or was in 1993, "impartial" or "independent"?)

As the White majority explained, "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. . . . [And] it would hardly be desirable [to find such a judge]" because he could not "be learned in the law" and yet have no preconceived legal views.

The independence and impartiality of the judiciary is indeed under fierce assault — from judges themselves. Contemporary Reconstructionist judges have violated their oath of office — "by Oath or Affirmation to support this Constitution." But unaccountable Reconstructionist judges have abdicated this ultimate responsibility and therefore can pick and choose whatever current legal fad they wish to depend on, and show partiality toward interest-group demands, their own personal views and values, etc.

Fiction #3: "Nominees should not be asked to 'prejudge' future cases and issues as a condition of confirmation, especially when such prejudgment involves a nominee's religious persuasion (allegedly a violation of the Constitution's prohibition on religious tests for national government office)." Fact: a judicial nominee's publicly articulating and defending the basic philosophical and constitutional positions which shape the entirety of his thinking and behavior is not "prejudging any case or issue." Nominees can, and must, be questioned, and questioned carefully, about the former.

If it were otherwise, nomination hearings would be short indeed. As the Court itself declared in White, "[t]here is almost no legal or political issue that is unlikely to come before a judge of an American Court, state or federal, of general jurisdiction." And a nominee's stating "a philosophical generalit[y] (e.g., "I am a strict constructionist") has little meaningful content for the electorate" and may not even be demonstrably true without "application to real-life issues" that the Court is likely to face.

This fact is illustrated by the issues of abortion and homosexual rights, about which Kagan's philosophy is clearly unclear. Cases in both these issue areas inevitably involve fundamental, non-legal questions such as the meaning of "personhood," the nature of man, the mature of marriage, and morality. Such cases are inevitably philosophical statements by the courts.

But these Court decisions are now also constitutional statements. The Court has dragged these issues into the constitutional arena with its convoluted expansion of the Constitution's Due Process and Equal Protection Clauses (as well as other provisions) to abortion, homosexual rights, and other fundamental cultural issues. The Court itself is thus the one responsible for legitimizing a wide range of questions of judicial nominees which would not have even been thought of in earlier American history. Scrubbing from nomination hearings and public debates over judges any discussion of a judge's views about these fundamental philosophical and constitutional questions of our society is an impossibility and a vicious slap at the principle of republican government. Indeed, it is these very issues that have ignited many of the flames in the Culture War now engulfing America.

It is therefore also a fiction to argue that questions about such issues as abortion or homosexual rights violate the Constitution's prohibition upon religious tests for national office. These issues are not "religious" per se. They are philosophical and constitutional. They do indeed have roots in religious values. But "to have roots in" something is not the same thing as "to be" something.

The constitutional and cultural conundrum created by fictitious arguments in the Kagan confirmation battle must be addressed by us — "We, the people." We must demand that our Senators (who are accountable to us — yes, to us and not their party or Senate peers) ask of all judicial nominees a full and honest explanation of their basic philosophical and constitutional positions. Law-savvy Americans can provide questions to a Senator who does not fulfill this responsibility. We must hold the Senate, the White House, and the nominee accountable in providing us with a substantial, objective, verifiable body of data revealing a nominee's basic philosophical and constitutional positions. Based on this body of data, we must voice our support or opposition to a nominee to our Senators. And we must continue to hold these officials accountable for the judicial conduct of any nominee who is confirmed. It is in this context of openness, not secrecy, that the greatest degree of judicial non-politicization, independence, and impartiality can be achieved.

We American Constitutionalists who hold a high view of our Constitution, believing that it is, and must be, the Supreme Law of the Land, must act. We are encouraged in this vital endeavor by one of America's most brilliant and articulate defenders of a limited judiciary — Justice Felix Frankfurter. Frankfurter wrote in 1941 that "Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism [or questioning] than other persons or institutions. . . . Judges must be kept mindful of their limitations, and of their ultimate public responsibility by a vigorous stream of criticism [or questioning] expressed with candor, however blunt [italics added]" (Bridges v. California, 314 U.S. 252, 289-290).

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