JUDGING ELENA

5/20/10

I’m not in the habit of defending nominations to the Supreme Court made my Democratic presidents, but Elena Kagan has put me in this decidedly uncomfortable position.

According to this morning’s Wall Street Journal, in handwritten notes for a speech she delivered to alums at her alma mater, Princeton, in 2003, the subject of which was the 2000 Bush v Gore election case, Ms. Kagan wrote that judges’ reasoning “necessarily + inevitably” involves “political + policy prescriptions.” Her conclusion was that, since this is the case, courts “should defer to political branches” and that “judicial review should be exercised with caution.”

Those who fancy themselves conservatives because they are professional Republicans somehow have seized on this statement as evidence of Ms. Kagan’s penchant for judicial activism. Curt Levey, executive director of something called the Committee for Justice, averred, in classic non-sequitur “I do not think policy and politics is an inevitable and necessary part of judicial review.” While it’s nice that Mr. Levey thinks that way, one’s opinion on whether judge’s political opinions do (not “should,” but “do”) enter into their judicial opinions would have no bearing on the process if the courts followed Ms. Kagan’s admonition to conduct judicial review with caution, which is, by the way, what the Republicans repeatedly tell us they want judges to do.

Indeed, Ms. Kagan’s scrawled notes convey the very essence of judicial restraint, the type of restraint “conservatives” claim to favor. That these “conservatives” can seize on these musings as evidence of a penchant on Ms. Kagan’s part for judicial activism first boggles the mind and second shows that those who say they are in favor of judicial restraint don’t mind judicial activism at all as long as the outcome of such activism is one they favor. In this case, they seem to be upset that Ms. Kagan’s preference for judicial restraint would have resulted in the recount Al Gore was seeking and possibly his becoming president. But politics shouldn’t enter into judicial decision making, no sir.

Sober Republicans probably realize that they can’t lay a hand on Ms. Kagan unless something new and unanticipated comes up in the next few weeks. They also probably realize (even if they don’t completely, or even nearly, understand the essence of the aforementioned scrawlings or even if those scrawlings hold little import) that Ms. Kagan is about as “good,” from their perspective, a nomination as they are going to get from Barack Obama. Obama is not going to nominate a “conservative” of the kind most of the professional GOPers seem to favor; i.e., someone who will indeed legislate from the bench in a manner acceptable to self-proclaimed conservatives. However, the GOPers have to make a show of opposing Elena Kagan. But attacks like the one led by Mr. Levey on a piece of “evidence” that reflects very well on Ms. Kagan from the viewpoint of those who truly oppose judicial activism just makes her opponents look silly.

What also might come to look silly is the argument that Ms. Kagan has no judicial experience. This argument may come back to bite the Republicans if some future GOP president comes up with a Supreme Court nominee who has no judicial experience. What will the GOPers who wail and gnash their teeth about Ms. Kagan’s not having been a judge do then? Why, they will tell us how wonderful it is that our (then) wise president had the foresight and courage to nominate someone “from outside the judicial monastery.” Hypocrisy is, after all, the politician’s stock in trade, but it is especially salient in the Republican Party, whose elected ranks are jammed with anti-government types who have never worked for anyone but the government. But I digress. One hopes that the American people will not stand for such hypocrisy, but one can also hope for, say, some modicum of intelligence to emanate from the idiot box when it’s tuned to the major networks with an equal probability of fulfillment of those hopes.