The president nominates individuals to serve on the Supreme Court. Since these are lifetime appointments a president can leave his mark on the nation long after leaving office. President Barack Obama’s two nominees to the Supreme Court – Sonya Sotomayor and Elena Kagan – indicate he will leave a negative mark.
Some downplay Kagan’s inevitable confirmation, suggesting that with one liberal replacing another, the configuration of the bench will be little changed. That’s the problem. With a different president this would have been an opportunity to shift the Court to an original intent posture. Court vacancies are rare so these are two critical opportunities lost.
On May 2, 2009, the Los Angeles Times reported Obama said his Court nominees will understand “justice isn’t about some abstract legal theory or footnote in a casebook. It’s also about how our laws affect the daily realities of people’s lives…”
Judges are not tasked with determining how laws affect people’s lives. That is the obligation of legislators who make the laws. The time to look into how a law will affect people’s lives is during the legislative process.
The judiciary interprets the laws as written – at least that was the original plan. Judges should not make rulings based on their opinions or how they believe a law should work. That is how the judiciary evolved and Obama, Sotomayor and soon Kagan will speed the system further down that reckless path.
During the hearings Kagan warbled the boilerplate verbiage required of a nominee. She pledged herself to “impartiality” and said the role of the Court should be “a modest one.”
Robert Bork was the last candidate to answer questions forthrightly. His candor earned him a rejection by the Senate. Contenders now realize a place on the Court can only be procured by saying what is expected and appearing to be accommodating. Kagan acknowledged as much in a 1995 paper she wrote for the University of Chicago Law Review.
Referencing the hearings for Ruth Bader Ginsburg and Steven Breyer, Kagan wrote the nominees “felt free to decline to disclose their views on controversial issues and cases. They stonewalled the Judiciary Committee to great effect, as senators greeted their ‘nonanswer’ answers with equanimity and resigned good humor.”
Sotomayor embraced that tradition during her confirmation proceedings and ventured beyond to the point where at least one answer she gave regarding the Second Amendment was deceptive.
Judiciary Committee Chairman Patrick Leahy asked Sotomayor whether she accepted “the Supreme Court’s decision as establishing that the Second Amendment right is an individual right.”
Sotomayor responded, “Yes, sir.”
Something happened in the transformation of Sotomayor from nominee to justice because in a recent ruling she concurred with Justice Breyer’s dissent which said, “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”
Could it be Sotomayor gave a less than honest response because she feared a truthful one would jeopardize her chance of confirmation?
Sotomayor was following the Kagan Dictum: Don’t offer views on controversial issues, be sly and be assured the senators will play along because they know the script just as you do.
Too often the quest for power has overshadowed integrity and the guardians of the gates willfully sacrifice their own uprightness because each knows the next time he might be the one who needs someone to ignore the facts.
Some on the left are using the Kagan hearings to suggest it is original intent justices who are activists. Barry Friedman, professor of law at New York University, wrote the current Court demonstrates “it is conservative judges who are … mangling the Constitution. In 2006, the five-person conservative majority … rolled back years of precedents… It upheld Congress’ ban on certain late-term abortions … even though the court just a few years earlier had struck down a similar, nearly indistinguishable law.”
Friedman ignores that Roe v. Wade made abortion a constitutionally protected procedure via the mythical ‘right to privacy’ – a slogan that appears in the Constitution as frequently as another cherished liberal phrase – ‘the separation of church and state.’ Friedman’s so-called activist court was correcting a sloppy previous abortion ruling.
Senator John Kyl, R-Ariz., questioned whether Kagan would judge cases “actively and for the rights of the disadvantaged” or “on the facts and the case before you.”
Predictably, Kagan said she would do “what the law requires.”
Certainly – just like Sotomayor did with respect to the Second Amendment.
Asked whether she thought the current Court was “activist” Kagan replied, “I would not want to characterize the current court in any way – I want to join it.”
Join it she will and America will be worse off for it.
On June 3, CBS News, hardly a conservative organization, reported Kagan will be a liberal judge.
Jan Crawford said, “Documents buried in Thurgood Marshall’s papers in the Library of Congress show that, as a young lawyer, Kagan stood … with the liberal left, including on the most controversial issue Supreme Court nominees ever confront: abortion.”
Crawford reported, “A recently disclosed memo on gun rights, in a case challenging the District of Columbia’s handgun ban as unconstitutional, Kagan was blunt: ‘I’m not sympathetic.’”
Kagan will sit on the Supreme Court and help her liberal colleagues wield the Constitution as a living and malleable document they will contort to fit their political philosophy. This is not what the Founders intended.
James Madison warned, “Do not separate text from historical background. If you do you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”
According to the left’s standards Madison would be unqualified to interpret the document he wrote. Kagan is the most recent example of the maxim: Elections have consequences. In this case the consequences will be bleak and long term.