Providing advice and consent on presidential nominations to the Supreme Court is among the most important functions of the United States Senate. To fulfill its duty, the Senate must engage in a thorough evaluation of a nominee’s record and his or her fitness for the bench. Yet just two days after the nomination of Elena Kagan to the Supreme Court, Judiciary Committee Chairman Patrick Leahy “sounded more eager to talk about what he thinks is wrong with the current justices than what he thinks is right about Elena Kagan.”[i]
It is easy to see why Senate Democrats would prefer to talk about something other than the pending nomination. Only 25 percent of Americans wanted to see the President nominate a liberal to the Supreme Court[ii] and, as more documents are made public, it becomes ever clearer that Kagan holds a broadly liberal world view and may be willing to impose those values from the bench. As one prominent Court observer noted, the papers from her time as a Supreme Court clerk “show Kagan standing shoulder-to-shoulder with the liberal left” on social policy and jurisprudence.[iii] Ms. Kagan appears to enjoy significantly less public support than previous successful nominees to the bench.[iv]
Rather than defend the nomination, or champion the liberal view of the Court’s role in our system of government, Democrats plan to use Kagan’s confirmation hearing to attack the Court and some of its recent rulings.[v] Specifically, they seek to paint the current Court as a “conservative activist court.” The press has widely noted this strategy,[vi] which Senate Democrats have previewed on Sunday shows,[vii] during Judiciary Committee hearings,[viii] and on the Senate floor.[ix] President Obama also has taken this line,[x] and it is being echoed by liberal activists[xi] and sympathetic commentators.[xii]
Not only are these attacks on the Court a distraction from the pending nomination, they also fail to reflect reality. The five recent cases most frequently cited by Democrats as evidence of a “conservative activist court,”[xiii] show nothing of the sort:
- Exxon Shipping Co. v. Baker.[xiv] This decision was written by Justice David Souter, who Nina Totenberg of National Public Radio called “a full-fledged member of the court’s unabashedly liberal caucus.”[xv] What’s more, in this case the Court merely held that under maritime law (which is largely judge made) punitive damages could not exceed actual damage – here $1 billion.
- Riegel v. Medtronic, Inc.[xvi] This was an 8 to 1 decision, where the majority included liberal Justices Stevens, Souter, and Breyer. The majority pointed out that when Congress adopted a comprehensive federal regulatory scheme for medical devices, it meant to preempt, or replace, state law with federal law. In fact, the law explicitly said that state laws would not remain in effect (which probably explains the overwhelming 8-1 ruling).
- Ledbetter v. Goodyear Tire and Rubber Co.[xvii] This is another wildly misrepresented case in which the Court simply applied the law that Congress had written: a 180-day statute of limitations to bring certain kinds of sexual discrimination claims.[xviii] If Congress thought that the limitations period should be longer in some cases, it had the power to change the law. In fact, that is precisely what it did when it passed, and the President signed, a new law in 2009.[xix]
- Gross v. FBL Financial Services.[xx] In this case the Court refused to read into the Age Discrimination Act[xxi] a type of claim that Congress expressly provided for in other discrimination laws, specifically those concerning race, color, religion, sex, and national origin.[xxii] Again, this is an example of the Court applying the law Congress wrote.
Citizens United v. Federal Election Commission.[xxiii] Of the cases usually cited in Democrat attacks on the Court, this is the only one in which the Court actually struck down an Act of Congress. It did so for a simple reason: the law passed by Congress violated a higher law, the First Amendment of the United States Constitution.
The law in question prohibited the broadcast of political speech critical of politicians in the run-up to an election. In defending the law, Solicitor General Kagan and her office argued that the government had the authority to prevent the publication of movies and other forms of political speech, such as books[xxiv] or pamphlets,[xxv] that advocated for or against candidates. No wonder even the liberal American Civil Liberties Union filed a brief arguing that the law was “facially unconstitutional” and “a poorly conceived effort to restrict political speech” that “should be struck down.”[xxvi] Faced with a law through which Congress exceeded its authority, the Court applied the Constitution and struck down the law.
In short, congressional Democrats criticize the Supreme Court in these cases because they do not like the result. But, with the exception of the Citizens United decision, the Court was merely applying the law Congress had written. If Congress does not like the results in these cases, it has the power to change the laws (and, in fact, in some matters it has done so). But the Court cannot engage in results-based judging, imposing laws that Congress could have passed but did not.
Rather than launching misleading attacks on sitting justices, the Senate should inquire as to what Elena Kagan thinks about the role of the Court and the issues involved in these and other cases. Citizens United may provide some insight into her thinking; the President has indicated that she chose the case as the very first she personally argued out of deep personal conviction.[xxvii] Ms. Kagan should be asked if she still holds such a narrow view of First Amendment rights, just as she should be asked about her views on a range of other issues such as the Second Amendment and the scope of government power under the Commerce Clause.
The American people deserve a thorough examination of Ms. Kagan’s qualifications and suitability for confirmation, not distracting side arguments.
[i] “A Little Activism of Their Own,” by Seth Stern, CQ Weekly, May 17, 2010, p. 1194
[ii] “CNN Poll: Will Obama name a liberal to Supreme Court?,” CNN.com, April 11, 2010
[iii] “Documents Show Kagan’s Liberal Opinion on Social Issues,” by Jan Crawford, CBS News, June, 3, 2010
[iv] “Support for Confirming Kagan Trails That of Recent Nominees,” Gallup.com, June 4, 2010
[v] See, e.g., “Dems Take Aim at Court Conservatives,” by Glenn Thrush, Politico, April 13, 2010, (“Democrats hope to turn the upcoming Supreme Court hearings into a referendum on controversial recent decisions by the Roberts court.”)
[vi] See, e.g., notes 1 and 5, supra
[vii] Senator Leahy, Meet the Press, April 11, 2010 (“This is a very, very activist court, the most activist court in my lifetime.”)
[viii] Hearings have been held to critique Court decisions including Citizens United (March 10, 2010), and Exxon (June 8, 2010).
[ix] See, e.g. Senator Feinstein, Congressional Record, May 3, 2010, S 3031 (“We have heard talk of ‘activist’ courts before and I fear that is exactly what we have today.”)
[x] Remarks by the President to the Travel Pool Aboard Air Force One, April 28, 2010
[xi] “The Supreme Court’s Activist, Pro-Corporate Opinions and Case Selection,” by Glenn Sugameli (Defenders of Wildlife), ACS Blog, April. 27, 2010
[xii] See, e.g., “The Right Court Fight,” by E.J. Dionne, Washington Post, April 26, 2010
[xiii] “Why Democrats See an ‘Activist Court,’” by Seth Stern, CQ Weekly, May 17, 2010, p. 1198
[xiv] 128 S. Ct. 2605 (2008)
[xv] “Supreme Court Justice Souter to Retire,” by Nina Totenberg, National Public Radio, April 30, 2009
[xvi] 552 U.S. 312 (2008)
[xvii] 550 U.S. 618 (2007)
[xviii] The Equal Pay Act, 29 U.S.C. § 206(d)
[xix] Pub. L. 111-2 (January 29, 2009)
[xx] 129 S. Ct. 2343 (2009)
[xxi] 29 U.S.C. § 621 et seq.
[xxii] 42 U.S.C. § 2000e-2(m)
[xxiii] 130 S. Ct. 876 (2010)
[xxiv] Oral Argument, March 24, 2009 (“We could prohibit the publication of the book.”)
[xxv] Oral Argument, September 9, 2009 (“A pamphlet is pretty classic electioneering,” so the law would apply.)
[xxvi] American Civil Liberties Union, Amicus Brief in Support of Appellant, 2009 WL 2365203 (July 31, 2009)
[xxvii] “Obama’s Kagan Admission,” Wall Street Journal, May 13, 2010
