The Kagan Hearings - Day 1

By 

Nathanael Bennett

|
June 9, 2011

3 min read

Supreme Court

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The confirmation hearings for Elena Kagans nomination to the Supreme Court of the United States began with opening statements from the Senators on the Senate Judiciary Committee, introductions of Kagan by Senators Kerry and Brown, and Kagans own opening statement.  As expected, the Senators opening statements largely fell along political lines. 

Republican Senators set out their concerns about Kagans nomination and their expectations for the hearings.  Primarily, Republicans are concerned with what type of judicial philosophy Kagan would bring to the Court.  Several Senators noted her lack of judicial experience and her lack of trial court experience and placed the burden on her to show what type of Justice she would be if confirmed.  For example, Senator Grassley stated: 

You now have the burden of showing us that, despite your record as a political lawyerrather than as a sitting judge or practitioneryoull apply the law impartially and not be a rubberstamp for the Presidents agenda.  A Supreme Court Justice shouldnt be a member of someones team working to achieve a preferred policy result on the bench.

Similarly, Senator Kyl stated:

Because she has no judicial record on which we can determine whether she is a results-oriented nominee or would approach each case as a neutral arbiter, the burden is on the nominee to show that her record demonstrates that she can be a fair and impartial justice rather than one who would have an outcome-based approach.

Senator Hatch highlighted some of the questions that go to the heart of a nominees judicial philosophy, stating:

The Senate, and the American people, need to know which kind of Justice Ms. Kagan would be.  Will the Constitution control her or will she try to control the Constitution?  Does she believe that the words of the Constitution and statutes can be separated from their meaning, so that the people and their elected representatives put words on the page but judges may determine what those words mean?  Does she believe it is valid for judges to mold and steer the law to achieve certain social ends?  Does she believe that a judges personal experiences and values may be the most important element in her decisions?  Does she believe that courts exist to protect certain interests?  Does she believe that judges may control the Constitution by changing its meaning?  Does she believe that judges may change the meaning of statutes in order to meet what judges believe are new social objectives?

We hope the Senators will ask Solicitor General Kagan these questions and that she will answer them directly.  If confirmed, Kagan could sit on the Supreme Court for several decades, presiding over the most important constitutional debates in our country.  These questions are vital to understanding what type of Justice Kagan would be if confirmed.

On day one, the Democrat Senators were largely critical of the current Court, calling it activist or conservative.  Senator Schumers statement was perhaps the strongest.  He said:

The rightward shift of the court under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens. In decision after decision, this court bends the law to suit an ideology. Judicial activism now has a new guise: judicial activism to pull the country to the right.

We will continue to monitor the hearings as they proceed this week.  We'll have updates here and on our daily radio broadcast, Jay Sekulow Live!