July 28, 2010

Arizona, Kagan & Race at DOJ

Statement of CFJ Executive Director Curt Levey:

Today’s ruling by U.S. District Judge Susan Bolton blocking the core provisions of Arizona’s immigration law reminds Americans of what’s at stake in the Elena Kagan confirmation fight. It also gives the Obama Administration an opportunity to counter the increasing suspicion of race-related politicization at the Justice Department.

An initial reading of Judge Bolton’s opinion, issued earlier this afternoon, reveals it to be weak on both legal analysis and deference to the fact-finding, policy determinations, and judgment of the people of Arizona’s duly elected representatives. In other words, her opinion is yet another example of the decades-long trend that has seen the courts assume the role of policy makers, becoming the ultimate arbiters of the great social issues of the day, from abortion to gay marriage and now immigration. Call it “judicial activism” or whatever you like, but it is a dramatic departure from the role of judges during most of America’s history, during which the great social issues of the day were decided by democratically elected legislatures at the state, local and federal levels.

The anti-democratic nature of expanded judicial power is made worse by the fact that the policy pronouncements of the courts are typically in line with elite opinion and at odds with public opinion. There are few better examples than Judge Bolton’s ruling today. If public opinion in Arizona and elsewhere didn’t favor a crackdown on illegal immigration, the opponents of the Arizona law would be running to the statehouses instead of the courts.

Like it or not, it’s a given these days that the most controversial social issues will ultimately be decided by the U.S. Supreme Court. That is why a senator cannot conscientiously justify a vote for Elena Kagan’s confirmation solely by referencing her intelligence and the considerable – but hardly absolute – deference that a President’s judicial picks deserve, while ignoring Kagan’s activist judicial philosophy and her liberal policy preferences.

A senator voting for Kagan should be willing to acknowledge that their vote is essentially a vote for same-sex marriage, strict gun control, partial birth abortion, racial preferences, ObamaCare, and the like. While there is little direct evidence of how Kagan will vote when the Arizona immigration law reaches the Supreme Court, there is every reason to believe she will vote to strike it down, give her admittedly liberal politics and the reality that Obama was looking for a nominee who could be counted on to uphold his Administration’s policies.

To be fair, there is a theoretical possibility that once on the Supreme Court, Kagan will rise above her policy preferences and be guided only by the rule of law. However, there is much in Kagan’s record to indicate otherwise and there is no judicial record to reassure us.

In some blue states, constituents will have little problem with their senators casting a vote for Kagan and the liberal policies she is likely to pursue on the Court. But those states are the exception. As I discussed in a recent op-ed, polls indicate that, nationwide, Kagan is on the wrong side of the American people on the leading social issues by large margins. Most Democratic senators and even some Republicans from red and purple states will nonetheless vote for Kagan and her liberal policies. But those senators should acknowledge the agenda they are voting for and be willing to be held accountable for it.

Turning to the Obama Justice Department, today’s ruling provides the Department with a chance to counter the charges of race-related politicization at DOJ that have grown out of the New Black Panther Party case, the alleged prohibition on prosecuting “reverse” racism, and the decision to challenge the Arizona immigration law before reading it. Under Judge Bolton’s broad interpretation of the Constitution’s Supremacy Clause, it is clearer than ever that the “sanctuary city” legislation enacted by localities across the nation is very vulnerable to constitutional challenge. After all, while the Arizona law at most expands upon federal law, sanctuary city legislation directly seeks to thwart federal immigration law.

Therein lies the opportunity. If the Obama DOJ decides to put politics aside and challenge sanctuary city laws with the same enthusiasm that it went after the Arizona immigration law, that decision would go a very long way to counter the charges of politicization. If, instead, the Justice Department ignores the opportunity presented by Judge Bolton’s broad reading of the Supremacy Clause and continues to acquiesce in the unconstitutionality of sanctuary cities, it will merely cement the growing suspicion that DOJ is more interested in politics than law, especially where race is concerned.