The process for approving President Obama’s supreme court nominee Elena Kagan has become a significant news item of late. For 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.
- Doyne, Shannon and Holly Epstein Ojalvo. “On the Bench? Vetting Supreme Court Nominee Elena Kagan”. 11 May 2010.↩