Thursday, July 01, 2010
Political Mayhem Thursday: The Kagan Hearings
It looks a near certainty that Elena Kagan has passed the test of her confirmation hearings, and will be confirmed to a seat on the Supreme Court. It's a fantastic accomplishment, and I agree with Ken Starr that she will be a fine justice.
Still, I was disappointed with the confirmation hearings. In 1995, Kagan herself wrote that such hearings should be truly substantive, and that prospective Justices should articulate their ideas on important issues. She was right. For a post that carries life tenure in such a high position, the Senate and public deserve a serious discussion of legal issues.
Sadly, her own performance reflected little real substance. She not only refused to talk about how she would have come down on cases that may in the future come before the Court, but on cases that the Court has already ruled. For example, the important Heller case, in which the Court first definitively held that there was an individual right to bear arms under the Second Amendment, is certainly one she was familiar with, but she refused to give her own view of the law in this area.
The whole thing reminded me of the most boring first-round World Cup games, where both teams were playing not to lose. Dean Kagan's first priority was to not give an answer that might inflame one side or the other, and she performed this task very well. Still, not scoring on your own goal is a low standard. We should expect more.
Here are this week's questions (you can answer one or all):
1) Would you vote to confirm Kagan if you were in the Senate?
2) Is the confirmation process flawed?
3) What did you think of Dean Kagan's performance?
4) What should President Obama look for if and when he gets to appoint another Justice?
Still, I was disappointed with the confirmation hearings. In 1995, Kagan herself wrote that such hearings should be truly substantive, and that prospective Justices should articulate their ideas on important issues. She was right. For a post that carries life tenure in such a high position, the Senate and public deserve a serious discussion of legal issues.
Sadly, her own performance reflected little real substance. She not only refused to talk about how she would have come down on cases that may in the future come before the Court, but on cases that the Court has already ruled. For example, the important Heller case, in which the Court first definitively held that there was an individual right to bear arms under the Second Amendment, is certainly one she was familiar with, but she refused to give her own view of the law in this area.
The whole thing reminded me of the most boring first-round World Cup games, where both teams were playing not to lose. Dean Kagan's first priority was to not give an answer that might inflame one side or the other, and she performed this task very well. Still, not scoring on your own goal is a low standard. We should expect more.
Here are this week's questions (you can answer one or all):
1) Would you vote to confirm Kagan if you were in the Senate?
2) Is the confirmation process flawed?
3) What did you think of Dean Kagan's performance?
4) What should President Obama look for if and when he gets to appoint another Justice?
Comments:
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(1) Yes.
(2) Not really; the political discourse in the United States is flawed, with even good attorneys like John Cornyn pretending not to understand that advocates in court often take positions they themselves do not hold. The judge's policy decisions, or how they might have ruled on a particular case when they were not privy to the discussions of the justices ought not to matter; hindsight often provides a lens through which we view opinions that is substantially different than the conditions under which that decision was made. It's also funny to hear conservatives try to ferret out judicial activists when the conservatives on the Court have been more "activist" than the ostensible "liberals" on the Court.
(3) Careful and deliberate, with lots of good "lawyerly" answers that avoided making enemies. Do I wish that Kagan had been clearer about her ideology? Not really, no, because ideology doesn't matter that much on the court. I care more about her judgment, her equanimity, and her temperament, all of which reflected a very calculating and incisive mind, which is a plus.
(4) More of the same. The best justices aren't ideologues (just like executives). Ideologues belong in the Legislative Branch. Charismatic leaders and visionaries belong in the Executive, and even-headed, insightful, brilliant tacticians belong in the Judiciary.
(2) Not really; the political discourse in the United States is flawed, with even good attorneys like John Cornyn pretending not to understand that advocates in court often take positions they themselves do not hold. The judge's policy decisions, or how they might have ruled on a particular case when they were not privy to the discussions of the justices ought not to matter; hindsight often provides a lens through which we view opinions that is substantially different than the conditions under which that decision was made. It's also funny to hear conservatives try to ferret out judicial activists when the conservatives on the Court have been more "activist" than the ostensible "liberals" on the Court.
(3) Careful and deliberate, with lots of good "lawyerly" answers that avoided making enemies. Do I wish that Kagan had been clearer about her ideology? Not really, no, because ideology doesn't matter that much on the court. I care more about her judgment, her equanimity, and her temperament, all of which reflected a very calculating and incisive mind, which is a plus.
(4) More of the same. The best justices aren't ideologues (just like executives). Ideologues belong in the Legislative Branch. Charismatic leaders and visionaries belong in the Executive, and even-headed, insightful, brilliant tacticians belong in the Judiciary.
I think Lane has stated it all quite well.
Let's face it, it you express your 'personal' belief; not necessarily your judicial belief you are going to piss off half the people in the room.
In the end we have the Constitution, Amendments and laws. The Congress passes the laws, the President signs the laws, the People challenge the laws and the Courts weigh the merits, language and intrepretations of those laws to fine tune them over time.
ps: Lane - hope you stayed relatively dry out on S. Padre Island.
Let's face it, it you express your 'personal' belief; not necessarily your judicial belief you are going to piss off half the people in the room.
In the end we have the Constitution, Amendments and laws. The Congress passes the laws, the President signs the laws, the People challenge the laws and the Courts weigh the merits, language and intrepretations of those laws to fine tune them over time.
ps: Lane - hope you stayed relatively dry out on S. Padre Island.
Kagan is going to be another liberal activist judge. The Republicans didn't even fight her.
# posted by 
: 10:23 AM
: 10:23 AM
1.) Don't know. Didn't watch enough to have a real opinion.
2.) Yes. Look, we all have opinions about pratically everything, and we are just a bunch of yahoos on an blog comments section. Judicial nominees have opinions. They have thoughts about the way the constitution works, what it means, what it should mean, why past decisions were wrong or right, etc. Why shouldn't we consider all of those things? Why wouldn't a substantive discussion of those issues, in which we got real answers to actual questions, give us not only a clear understanding of the justice's framework, but also the justice's "judgment, her equanimity, and her temperament."
I know this, watching a judicial appointee give political answers teaches us nothing about that appointee. When Sotomayor was in her confirmation hearings she was asked about Heller, and said, "I understand the individual right fully that the Supreme Court recognized in Heller...I understand how important the right to bear arms is to many, many Americans." What?? Huh?? In McDonald she signed onto a dissent that argued, "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense."
Why didn't she just say that at the hearing? Wouldn't it have been more interesting, illuminating, engaging if there would have been an actual substantive discussion of that belief?
3.) Haven't watched. But, based on Lane's description of "careful and deliberate, with lots of good 'lawyerly' answers that avoided making enemies" I'm sure they have sucked.
4.) Robert Bork.
2.) Yes. Look, we all have opinions about pratically everything, and we are just a bunch of yahoos on an blog comments section. Judicial nominees have opinions. They have thoughts about the way the constitution works, what it means, what it should mean, why past decisions were wrong or right, etc. Why shouldn't we consider all of those things? Why wouldn't a substantive discussion of those issues, in which we got real answers to actual questions, give us not only a clear understanding of the justice's framework, but also the justice's "judgment, her equanimity, and her temperament."
I know this, watching a judicial appointee give political answers teaches us nothing about that appointee. When Sotomayor was in her confirmation hearings she was asked about Heller, and said, "I understand the individual right fully that the Supreme Court recognized in Heller...I understand how important the right to bear arms is to many, many Americans." What?? Huh?? In McDonald she signed onto a dissent that argued, "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense."
Why didn't she just say that at the hearing? Wouldn't it have been more interesting, illuminating, engaging if there would have been an actual substantive discussion of that belief?
3.) Haven't watched. But, based on Lane's description of "careful and deliberate, with lots of good 'lawyerly' answers that avoided making enemies" I'm sure they have sucked.
4.) Robert Bork.
# posted by : 10:42 AM
: 10:42 AM
THIS IS AN OUTRAGE.
1) NO, I WOULDN'T CONFIRM HER, THAT GAY LIBERAL HIPPIE COMMUNIST. "HARVARD"? HA! WHO EVER HEARD OF THAT PLACE?
2) NO! EVERYTHING IS FINE JUST THE WAY IT IS. THERE JUST AREN'T ENOUGH TEA PARTY PEOPLE IN THE SENATE. "MODERATE CONSERVATIVE"? HA! THE ONLY WAY TO MAKE STUFF HAPPEN IS TO PRETEND THAT YOU HATE THE GOVERNMENT!
3) SHE WAS TERRIBLE. SHE IS A GAY LIBERAL HIPPIE COMMUNIST. THEY ARE BAD. SHE IS OFFENSIVE TO GOD, AND IS OFFENSIVE TO ME.
4) THAT LIBERAL HIPPIE COMMUNIST OBAMA WILL NEVER APPOINT ANYBODY EXCEPT FOR LIBERAL HIPPIE COMMUNISTS, BUT IT WOULD BE GREAT IF HE APPOINTED RUSH LIMBAUGH, SARAH PALIN, AND WHOEVER WRITES THOSE FASCINATING LETTERS TO THE WACO TRIBUNE HERALD. THEY AREN'T JUDGES, BUT THAT'S ONLY BAD IF YOU'RE, UH, LIBERAL.
FINANCIAL REFORM WILL KILL US ALL!!1!
--ALL CAPS GUY
1) NO, I WOULDN'T CONFIRM HER, THAT GAY LIBERAL HIPPIE COMMUNIST. "HARVARD"? HA! WHO EVER HEARD OF THAT PLACE?
2) NO! EVERYTHING IS FINE JUST THE WAY IT IS. THERE JUST AREN'T ENOUGH TEA PARTY PEOPLE IN THE SENATE. "MODERATE CONSERVATIVE"? HA! THE ONLY WAY TO MAKE STUFF HAPPEN IS TO PRETEND THAT YOU HATE THE GOVERNMENT!
3) SHE WAS TERRIBLE. SHE IS A GAY LIBERAL HIPPIE COMMUNIST. THEY ARE BAD. SHE IS OFFENSIVE TO GOD, AND IS OFFENSIVE TO ME.
4) THAT LIBERAL HIPPIE COMMUNIST OBAMA WILL NEVER APPOINT ANYBODY EXCEPT FOR LIBERAL HIPPIE COMMUNISTS, BUT IT WOULD BE GREAT IF HE APPOINTED RUSH LIMBAUGH, SARAH PALIN, AND WHOEVER WRITES THOSE FASCINATING LETTERS TO THE WACO TRIBUNE HERALD. THEY AREN'T JUDGES, BUT THAT'S ONLY BAD IF YOU'RE, UH, LIBERAL.
FINANCIAL REFORM WILL KILL US ALL!!1!
--ALL CAPS GUY
# posted by : 11:04 AM
: 11:04 AM
Ever since Bork, these things are a farce. I did like her response to where she'd be at Christmas, which I only saw on the Daily Show, because I would never waste my time actually watching one of these things on CSPAN.
1. I would vote to confrim Kagan, mainly because my threshold for confirming a justice to the Court is extremely low. I give great deference to the President in this exercise.
2. The confirmation process really is a "vapid and hollow charade" if you are hoping to see the "Senate gatekeepers," like political TSA agents, identify and detain dangerous and hostile miscreants intent on doing damage to your perception of what the Court is supposed to do. On the other hand, if you are not especially concerned with letting through the wrong justice, the process can be a constructive educational moment in myriad ways.
3. So far, I am not a Kagan fan. She seems smart enough (hopefully, the Dean of Harvard Law School is no dummy). But she does not strike me as nearly as funny or as smart as she thinks she is. Perhaps I judge too harshly, but she seems incredibly pleased with herself and a bit too confident in her own ability.
4. I don't know what the President should look for--but I think I have a sense of what he will look for: another person who can move forward his political agenda and someone who secures proper representation for his political ideology over the next couple of decades.
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2. The confirmation process really is a "vapid and hollow charade" if you are hoping to see the "Senate gatekeepers," like political TSA agents, identify and detain dangerous and hostile miscreants intent on doing damage to your perception of what the Court is supposed to do. On the other hand, if you are not especially concerned with letting through the wrong justice, the process can be a constructive educational moment in myriad ways.
3. So far, I am not a Kagan fan. She seems smart enough (hopefully, the Dean of Harvard Law School is no dummy). But she does not strike me as nearly as funny or as smart as she thinks she is. Perhaps I judge too harshly, but she seems incredibly pleased with herself and a bit too confident in her own ability.
4. I don't know what the President should look for--but I think I have a sense of what he will look for: another person who can move forward his political agenda and someone who secures proper representation for his political ideology over the next couple of decades.
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