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.
First appeared in the Tennessean