Lawmakers Cannot Confirm a Blank Slate

Pres­i­dent Barack Obama’s nom­i­na­tion of Elena Kagan raises many unan­swered ques­tions. But that’s one rea­son the Sen­ate has a Judi­ciary Committee.

Why so many ques­tions? Because Kagan comes with the thinnest record of any nom­i­nee in decades. Not only has she never served as a judge, but she has pre­cious lit­tle court­room expe­ri­ence.

When nom­i­nated for the post of solic­i­tor gen­eral 15 months ago, she had never argued a case in any court. Since the solic­i­tor general’s office rep­re­sents the United States before the Supreme Court, her appoint­ment was viewed by some as on-the-job-training for a sub­se­quent pro­mo­tion to the Supreme Court.

And while her aca­d­e­mic posts as pro­fes­sor and dean of Har­vard Law School are pres­ti­gious, her aca­d­e­mic writ­ings are pal­try — just six law review articles.

Kagan’s sup­port­ers argue that sev­eral 20th-century jus­tices, includ­ing William Rehn­quist, Earl War­ren and Felix Frank­furter, lacked judi­cial expe­ri­ence. But these jus­tices had sub­stan­tial legal expe­ri­ence and aca­d­e­mic records. Rehn­quist had 16 years lit­i­ga­tion expe­ri­ence before tak­ing a post at the Jus­tice Depart­ment. War­ren had been a pros­e­cu­tor and attor­ney gen­eral of Cal­i­for­nia, which he also served as gov­er­nor. Frank­furter had pub­lished 45 arti­cles in the Har­vard Law Review alone.

With due respect to Ms. Kagan, she does not have the same kind of record. And a record is tremen­dously impor­tant, because it gives sen­a­tors insight into how a nom­i­nee would approach the law.

Short record looks liberal

What can be gleaned from her lim­ited record is a decid­edly lib­eral approach to pol­i­tics and law. First, there’s her deci­sion to dis­crim­i­nate against mil­i­tary recruiters on Harvard’s cam­pus. Her attempt to defend her actions in a legal brief was unan­i­mously rejected by the Supreme Court as “unreasonable.”

Then there’s her rec­om­men­da­tion to Jus­tice Thur­good Mar­shall that the Supreme Court not hear a case chal­leng­ing the Dis­trict of Columbia’s com­plete ban on hand­guns because she was “unsym­pa­thetic.” Her open­ness in aca­d­e­mic arti­cles and in advo­cacy to sanc­tion broad gov­ern­ment reg­u­la­tion of speech con­sti­tutes fur­ther evi­dence that she leans sig­nif­i­cantly toward the left on key issues. More wor­ri­some, this record sug­gests that she lets her pol­icy pref­er­ences inject them­selves into her legal judgments.

Per­haps most trou­bling is Kagan’s praise for a vision of con­sti­tu­tional law that she describes as demand­ing “above all else” an earnest care for the “despised and dis­ad­van­taged.” This view sounds sim­i­lar to Pres­i­dent Obama’s much-criticized “empa­thy” stan­dard, in which he sug­gested that judges should rule based on their feel­ings about the par­ties. Both expres­sions sound remark­ably unlike the oath of office for a Supreme Court jus­tice, which states, “I will admin­is­ter jus­tice with­out respect to per­sons, and do equal right to the poor and to the rich.”

While these state­ments are dis­con­cert­ing, there are impor­tant ques­tions of judi­cial phi­los­o­phy where Ms. Kagan has been silent. For exam­ple, to what extent, if any, does she believe that for­eign law should be used to inter­pret the Con­sti­tu­tion? Does she believe that the law should be inter­preted as writ­ten, or should a judge treat law as sub­ject to change by the courts?

Sen­a­tors need to ask these and other ques­tions. And, to avoid what Kagan has derided as the “farce” of con­fir­ma­tion hear­ings, the nom­i­nee needs to actu­ally answer them. Only then will sen­a­tors be able to deter­mine whether she mer­its con­fir­ma­tion to the high­est court in the land.

Robert Alt is senior legal fel­low and deputy direc­tor of The Her­itage Foundation’s Cen­ter for Legal and Judi­cial Studies.

About the Author

Robert Alt Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in the Tennessean