Supreme Court Nominee Elena Kagan

The process for approving President Obama’s supreme court nominee Elena Kagan has become a significant news item of late. Supreme Court Nominee Elena KaganFor example, today’s civics “Lesson Plan” at the New York Times suggested a methodology for reviewing Ms. Kagan’s nomination in order to help students “determine whether they believe she should be appointed to the bench after learning about her experience, background and stances. They then develop a ‘game plan’ for supporting or opposing the nomination.”

Below is an excerpt of how they suggest teachers approach discussing the nomination with their students:

Ask students to share what they already know about the U.S. Supreme Court using such questions as: What do Supreme Court justices do? What is judicial review? What does it mean to interpret the United States Constitution? How does a person become a Supreme Court Justice? Why are a nominee’s political leanings and judicial ideology a matter of interest and concern, particularly to members of the Senate?

Next ask students to brainstorm the qualities and experience they think a Supreme Court justice should have, given their understanding of the position. List these on the board and discuss them briefly.

Then ask students to share what they have heard or read about Elena Kagan, such as her experience as U.S. Solicitor General or dean of the Harvard Law School. If students do not mention it themselves, tell them that Ms. Kagan has not served as a judge, which is not a requirement. Indeed, though most Justices have had judicial experience prior to their Supreme Court appointments, 40 (out of 111 total) have not, including chief justices William Rehnquist (who immediately preceded Chief Justice Roberts), Earl Warren and John Marshall.1

The article goes on to suggest other ways in which to view Ms. Kagan’s nomination.

In some respects, this lesson contains information that bears some similarities to a talk given by Rex E. Lee, former Solicitor General in the Reagan administration, almost 20 years ago in a devotional address at Brigham Young University. In that talk, he suggested the consequences attendant to interpreting the Constitution and the importance of pending judicial nominees:

One of the most important features of the American Constitution, both in theory and in practice, is the magnificent breadth of its most important provisions–notably the commerce clause, most of the Bill of Rights guarantees, and the Fourteenth Amendment’s due process and equal protection clauses. The lack of specificity of these and other provisions has almost certainly been essential to the ability of this document drafted in 1787 to survive over 200 years of the largest and most unanticipated change that any country at any time has ever experienced.

And yet there is another edge to this generality. Someone has to be vested with the final authority to determine what the Constitution means when its provisions are applied to concrete practical facts, many of which were totally unanticipated at the time of the Constitutional Convention. For example, how, if at all, is the authority of the states to regulate the lengths and weights of trucks on interstate highways precluded by Congress’s constitutional authority “to regulate commerce . . . among the several states”? In 1787 few people were thinking about interstate highways or trucks. Similarly, the Constitution guarantees against infringements on free speech. What does that guarantee do, if anything, to state laws providing recovery for libel and slander? And what is speech? Any form of expression? Does it include flag burning? If so, is there a difference between burning flags and burning draft cards? Or sleeping in tents as a protest against homelessness? And what about the recent controversy over the refusal of the National Endowment for the Arts to give grants to projects or works that it considers obscene? Does the Constitution require that so long as NEA gives grants to anyone, it not exclude those that it considers objectionable?

You can read the Constitution very carefully and not find, even in a footnote or an annotated version, any answer to any of those questions. Each of these is a form of expression, and yet none of them uses words. Speech or not? First Amendment protected or not? Different people would give different answers to those questions.

And even where the text is more specific, questions of interpretation still remain. For example, with respect to the issue that is very much at the forefront of all of our minds today, how much could President Bush have done in the Persian Gulf without a formal congressional declaration? In this case, Congress acted, but in other crucial instances, such as the Civil War, Korea, and Vietnam, congressional action was either absent or less decisive. The Constitution states unequivocally, and quite specifically, that “the Congress shall have power . . . to declare war.” Yet in language that is equally unequivocal and equally precise, Article II states that “the President shall be Commander-in-Chief of the Army and Navy of the United States.” Did Presidents Lincoln, Truman, Johnson, and Nixon act unconstitutionally, or were they within their Article II powers?

Nothing in the text of the Constitution, and nothing in its history, provides the answer to those and many other practical questions that arise every day. But if our nation is to survive as a functioning constitutional republic, someone has to say what these broad, general provisions of the Constitution really mean. Since the issue is one of interpretation, common sense tells us that the Constitution is among the laws that the courts interpret, and that commonsense view is supported both by 187 years of actual practice and also by the most authoritative piece of constitutional history on this issue, Number 78 of the Federalist Papers, authored by Hamilton.

There are some consequences of this judicial power to interpret the Constitution that are a concern to many people, including your speaker. It means that five people–a majority of the Supreme Court–have the power not only to interpret the Constitution, but also effectively to amend it if they choose to do so, with little effective power for Congress, the president, or the people to reverse what the Court does in any particular case.

As large and as real as that concern is, it needs to be tempered by two facts. The first is that it is fairly clear to me that this power of judicial review–the authority of the courts to have the last word on constitutionality–was intended by the 1787 framers, though they did not explicitly say so. By combining the power of judicial review (which, as Hamilton says, they probably did intend) with the very broad language that the Founding Fathers used in the Constitution’s most important provisions, the expansive judicial power that comes from judicial review was, in a sense, part of the “original intent” of the 1787 framers.

Second, there is, over the long run, a responsiveness between the will of the people and the content of our constitutional law. This comes about through the power of the president to appoint members of the federal judiciary. Indeed, as every recent president since Eisenhower has explicitly observed, one of the most important acts of any president–some have said the most important–is to appoint members of the Supreme Court, whose average tenure has been several times that of our presidents.

Therefore, over the decades of your future careers as voting Americans, just remember that when you vote for a president, you are doing more than picking the person who will lead us in war and peace and have access to Camp David and Air Force One. You are also in effect making a decision as to what kind of person you want on the Supreme Court. Our nation’s history over the last half century demonstrates this fact. Particularly illustrative are the eight Roosevelt appointments in the late 1930s and early 1940s, and Nixon’s four appointments between 1969 and 1972. While both of these presidents, and others, were probably disappointed in some of their appointees, as a group, those appointed by Roosevelt and also Nixon reflected the views of the president who appointed them, and presumably the people who elected the president. Most important of all, both the Roosevelt and the Nixon appointees have had large effects on all of us that will last for decades and, in many instances, forever.2

Ms. Kagan has impressive academic credentials but lacks time on the bench. Regardless, her relative youth means she could have significant influence on the court for many decades to come.

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  1. Doyne, Shannon and Holly Epstein Ojalvo. “On the Bench? Vetting Supreme Court Nominee Elena Kagan”. 11 May 2010.
  2. The Constitution and the Restoration”. 15 Jan 1991. BYU Speeches. 11 May 2010.

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  1. Aaron’s avatar

    I’m glad you note that more than one previous justice has not served as a judge. That said, my only complaint about Kagan is that she is just another Ivy. I would like to see some justices from other institutions of higher learning, or maybe a justice who was self-educated, as was Harry Truman, who never attended college. I find most of our current justices, regardless of their political leanings, too much the monks of mahogany-paneled courtrooms and not enough the common man (or woman).

  2. jwgibson’s avatar

    Why would this Administration care about experience. Our President had no Executive experience even at the town level.

    Just like former President Clinton, the key to this appointment is who will do what the President wants.

    And in Kagan pro’s are her track record of supporting Obama. In her role as Solicitor General, she argued , successfully , to overturn cases based on the Freedom of Information Act.

    Her arguements seem to be helping this administration hide things, rather than real threat of National Security or privacy matters. She is quoted using his “judgement” as validity of her arguement.

    My opinion is that she shouldn’t be appointed, but my belief is she will.

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