The Supreme Court, Baseball and Elena Kagan

Back in April in one of my last posts, I wrote about the Supreme Court.  Today, nominee Elena Kagan responded to questions about Chief Justice John Roberts’ metaphor that being judges is like being umpires.

According to Political.com

Supreme Court nominee Elena Kagan on Wednesday gently criticized Chief Justice John Roberts’s hotly debated assertion that a Supreme Court justice’s job is “to call balls and strikes” like an umpire, suggesting the description may have misled the public about the work judges do.

 “The metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it, that it’s easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that’s not right,” Kagan said in response to a question from Sen. Amy Klobuchar (D-Minn.) “It’s especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.”

 Kagan went on to imply that Roberts may have downplayed the degree to which judging requires perspective.

 “Judges do, in many of these cases, have to exercise judgment. They’re not easy calls. That doesn’t mean that they’re doing anything other than applying law,” Kagan said. “But we do know that not every case is decided 9-0, and that’s not because anybody’s acting in bad faith. It’s because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law — law does require a kind of judgment, a kind of wisdom.”

 Her mild criticism of Roberts was a notable departure for Kagan, who has studiously declined senators’ repeated invitations to discuss her opinions on previous Supreme Court’s decisions or to cast aspersions on the motivations or analytical techniques of the justices.

The hearings have turned into a discussion about what an activist judge looks like.  Is it Justice Thurgood Marshall as some Republicans tried to say an activist judge?  And if he is Elana Kagan will be the same because she clerked for him and will somehow channel him.

Supreme Court nominee Elena Kagan has come under an unusual line of attack from Republicans on the Senate Judiciary Committee. The Senators are going after Kagan’s 1988 clerkship for former Supreme Court Justice Thurgood Marshall, the first-ever African American justice, who retired in 1991 after helping to bring the court through some of the biggest civil-rights cases in its history. Some Republicans are taking this as an opportunity not only to put Marshall on trial but also make Kagan the chief witness. Here’s what’s happening, why, and what it means.

  • Going After Thurgood Marshall The Washington Post’s Dana Milbank reports, “‘Justice Marshall’s judicial philosophy,’ said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, ‘is not what I would consider to be mainstream.’ Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall ‘might be the epitome of a results-oriented judge,’ he said. Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a ‘well-known activist.’ Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view ‘does not comport with the proper role of a judge or judicial method.’ Sen. John Cornyn (R-Tex.) pronounced Marshall ‘a judicial activist’ with a ‘judicial philosophy that concerns me.'”
  • Making Everything About Marshall Talking Points Memo’s Christina Bellantoni reports, “Ranking member Sen. Jeff Sessions (R-AL) criticized Kagan for having ‘associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge’s preferred social policies,’ citing Marshall as his son, Thurgood Marshall Jr., sat in the audience of the Judiciary Committee hearings. In an example of how much the GOP focused on Marshall, his name came up 35 times.”

Of course, I think, along with Senators Al Franken,  Patrick Leahy and many others that actually the Roberts’ Court is the activist court.

When Judiciary Committee Chairman Patrick Leahy called on Franken, Minnesota’s junior Senator got right to his criticism that the current Supreme Court has been favoring powerful corporate interests over the rights of individuals.

Franken talked about how he believes that mandatory arbitration clauses strip Americans of the right to have grievances heard in a neutral court.

“Do you still agree … that one of the glorious things about courts is that they provide a level playing field in all circumstances?” he asked Kagan.

She replied that she agreed “very strongly” with Franken.

Democrats have accused the court — led by Chief Justice John Roberts — of overstepping its role by establishing policy rather than interpreting the law. Franken has been outspoken on the issue. In his time with Kagan, Franken was sharply critical of Chief Justice Roberts.

He accused Roberts and other justices of judicial activism that contradicted their own stated tenets. Franken cited the campaign finance case “Citizens United” as an example of the Robert’s court going beyond specific questions before it.

The landmark ruling this year determined that corporate funding of political broadcasts cannot be limited. It stemmed from a case of a non-profit corporation airing a film critical of Hillary Clinton.

The New York Times reported

Indeed, Ms. Kagan was unusually expansive when talking about matters in which she is already on record. She volunteered that she is not morally opposed to the death penalty, a position she took when she was confirmed as solicitor general. And she spoke freely about this year’s ruling in Citizens United v. Federal Election Commission, in which the conservative bloc on the court ruled against her, striking down legal limits on corporate spending to influence elections.

Democrats have portrayed that ruling as “conservative judicial activism.” Ms. Kagan — who as solicitor general argued in defense of the campaign finance rules — said she convinced herself in preparing that “we had extremely strong arguments.”

Ms. Kagan also displayed a bit of her law professor side, talking more extensively about abstract issues like how constitutional law develops over time. In a mild challenge to the conservative view that the Constitution can be interpreted based only on the original meaning of its text, she said there were also instances in which the Supreme Court had applied a principle embedded in the Constitution in a new way.

She cited the 1954 case of Brown v. Board of Education, which struck down segregation in schools. The case relied upon the 14th Amendment’s guarantee of equal protection of the laws, yet Ms. Kagan noted that the amendment’s drafters thought it “perfectly consistent with segregated schools.”

Justice Thurgood Marshall, who as a lawyer argued the Brown case, has emerged as a dominant figure in the hearings. Ms. Kagan clerked for him, and Republicans, led by Senator Jon Kyl of Arizona, have attacked Justice Marshall as a liberal “activist” and expressed concerns about Ms. Kagan’s association with him.

On Tuesday, Ms. Kagan told Mr. Kyl that she was not her former boss. “I love Justice Marshall,” she said. “He did an enormous amount for me, but if you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall. And that’s an important thing.”

I think that Elena Kagan is doing her best to criticize the Republicans and the current conservatives on the Supreme Court as she can without antagonizing her future colleagues.  She isn’t a “progressive activist” (whatever that is), but I think she is smart enough and diplomatic enough to get Justice Kennedy’s vote and maybe even Justice Alito’s vote.

 

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