The vote to confirm Elena Kagan to the Supreme Court, now scheduled for late this week, was slyly delayed by Democrats so that debate in the full Senate would be cut short by the August recess. Although almost all of the Republican minority will cast symbolic votes against her, they effectively honored President Obama’s choice by stopping short of a filibuster.
Democrats were not so honorable in 2001 during the Bush administration, when they successfully employed a purely partisan filibuster to block the appointment of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. Although Estrada had won a unanimous “well qualified” rating from the American Bar Association, Democrats in the Senate fought off the Estrada nomination for 2 1/2 years before it was finally withdrawn. It was the first time in history an appeals court nominee had been filibustered. Estrada’s unpardonable crime was his conservative judicial philosophy.
Presidential elections are about many things, one of which is the power to nominate judges to the federal courts. Republicans tend to prefer conservative judges, Democrats liberal ones. And it’s understood that one of the spoils of winning an election is that the president is granted some leeway by the opposition party in the Senate regarding the confirmation of his kind of judges — up to point.
In appraising a nominee’s qualifications, judicial philosophy should most certainly be a factor. Suppose a nominee were to declare, for example, that he didn’t believe the three branches of government were equal, but that the court should reign supreme? (Not that any nominees actually reveal their true beliefs during confirmation hearings these days.) I’d say that would be grounds for disqualification. As would the belief that U.S. Supreme Court justices should be guided by the rulings of foreign courts, which don’t operate under our laws or our Constitution. Remarkably, sitting Justices Ruth Bader Ginsburg and Stephen Breyer have cozied up to just that view, as did former Justice Sandra Day O’Connor.
The last nominee to tell the Judiciary Committee and the nation what he honestly believed was Judge Robert Bork, nominated by Ronald Reagan in 1987. Bork’s eloquent advocacy of constitutional originalism was met with scorn by liberal, majority Democrats. Ted Kennedy led the attack, trashing Bork’s nomination with an outrageously demagogic rant from the Senate floor. Another philosophical conservative, Clarence Thomas, although narrowly confirmed in 1991, was similarly “borked,” subjected to brutal treatment and tawdry personal attacks by Senate Democrats. Since then, nominees have hidden behind the “Ginsburg Rule” and substituted platitudes for philosophy.
Today, a key philosophical battleground is the concept of a “living constitution.” This is a euphemism for an elastic constitution stretched out of all recognition, unconstrained by original intent and arbitrarily interpreted by activist judges usurping the role of legislators. Judicial activists work backwards from a desired social, political or economic outcome, rationalized by a convenient reinterpretation of the Constitution or the law. The Constitution is thus treated as a troublesome obstacle to be circumvented or ignored if the ends justify the means — as perceived by liberal judges.
Our founders would have been repulsed by this philosophy, which has nonetheless been nurtured at our nation’s elite, liberal law schools, where the notion of a “living Constitution” has metastasized from exotic to debatable to respectable to fashionable to (now) dominant.
Coy and evasive as she may have been during her confirmation hearing, I have little doubt that Elena Kagan embraces this philosophy. Her selection by Obama wasn’t inadvertent. She’ll join the court’s liberal bloc of Breyer, Ginsburg and Sonia Sotomayor. One more, should a conservative judge be replaced during Obama’s tenure, and they’ll form a majority of judicial activists. If I were a senator, how could I possibly, in good conscience, ignore a nominee’s judicial philosophy and vote to confirm someone of this ilk?
Mike Rosen’s radio show airs weekdays from 9 a.m. to noon on 850-KOA.
