May 19, 2010

Primary Results & Kagan’s Judicial Activism

Last night’s primary election results contain some bad news for Supreme Court nominee Elena Kagan. The biggest news of the night was the defeat of Sen. Arlen Specter’s (D – Penn.), Kagan’s harshest critic when her nomination for Solicitor General was before the U.S. Senate last year. Specter hammered Kagan for her failure to be forthcoming during her confirmation hearing and in answers to written questions. Specter’s take: “I use the word ‘replies’ carefully because I didn’t get too many answers as to where she stood on some critical issues.”

With Specter no longer facing the constraints of seeking reelection, the former prosecutor is free to go out in a blaze of glory by sticking to principle and demanding that Kagan fill in the many holes in her notoriously thin record. Along with senators like Blanche Lincoln and Ben Nelson, Specter joins the ranks of Democrats most likely to vote against Kagan’s confirmation to the Supreme Court.

The other piece of bad news for Elena Kagan last night was the overwhelming victory by libertarian Senate candidate Rand Paul of Kentucky. It dramatically demonstrated that the American people’s increasing concern about unrestrained federal power has moved from the living room to the voting booth. That will make it harder for red and purple state Democratic senators to vote for a Supreme Court nominee whose activist view of judging would make the Court an institution of essentially limitless power.

On that note, more evidence of Kagan’s enthusiastic belief in judicial activism was revealed yesterday when her 1983 Oxford University thesis became available. In it, she writes that
“[J]udges will have opinions, prejudices, values. Perhaps most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.” (emphasis added)
Kagan adds that “no court should make or justify its decisions solely by reference to the demands of social justice” (emphasis added). But she is clearly describing an outcome-oriented vision of the judicial process in which judges “justify a ruling in terms of legal principle” – for largely utilitarian reasons – only after looking to their personal values, goals, and notions of social justice in determining the outcome of the case. This is the hallmark of judicial activism.

Even Kagan’s statement in her thesis that “Concern for ethical values … has an important role to play in the judicial process” betrays a profound rejection of the Founding Fathers’ view of democratic government. They intended that disagreements about ethical values – whether concerning crime and punishment, gay rights, or abortion – be decided by the democratic branches of government rather than by, in Justice Scalia’s words, unelected judges enforcing "the views and values of the lawyer class from which the Court's Members are drawn." (dissent in Romer v. Evans, 1996)

This is not the first Kagan thesis to raise eyebrows. Her Princeton undergraduate thesis, “To the Final Conflict: Socialism in New York City, 1900-1933,” expresses sadness at both “socialism's decline” and the lack of recognition for “socialism's greatness,” while advising “American radicals” to unite. Though thirty years old, Kagan’s Princeton thesis will be an issue in this summer’s confirmation fight, both because of her belief that social justice should play a role in judging and because of widespread concern – fair or not – that the nation is creeping towards socialism.

The judicial philosophy Kagan endorses in her Oxford thesis is consistent with earlier revelations from both a speech about Justice Thurgood Marshall and memos she wrote while clerking for the U.S. Supreme Court. In one memo, Kagan worries that the Court will recognize only the Constitution’s explicit liberties – freedom of speech and due process, for example – rather than its hypothesized “positive liberties,” essentially welfare rights to governmental aid.

In her speech about Justice Marshall, Kagan describes his decidedly activist view of the judiciary’s mission – to “show a special solicitude for the despised and disadvantaged” and “to safeguard the interests of people who had no other champion” in her words – as “a thing of glory.” This Kagan / Marshall judicial philosophy was rejected by even the very liberal Sonia Sotomayor in her testimony last summer.

While it’s possible that Elena Kagan has recently changed her mind about the proper role of a judge, Kagan’s thin record and troubling statements about judicial philosophy put the burden of proof on her to demonstrate that the American people have no reason to fear she will be an activist Justice who views the Supreme Court’s power as essentially limitless. It is, therefore, crucial that Kagan engage in an open and honest debate with senators about her judicial philosophy and other controversial views, and that she and the White House press the Clinton Library to quickly release the more than 160,000 pages of documents from her tenure as President Clinton’s associate counsel and domestic policy advisor.