by Kakofonous
The nomination of current Solicitor General Elena Kagan to the Supreme Court of the United States on Monday came as no surprise to anyone. It had been widely rumored for weeks beforehand, even months, as Kagan was also on the shortlist to replace the retiring Justice Souter in 2009. Like Sonia Sotomayor, the judge who ended up replacing Souter, Kagan is expected to be confirmed relatively easily by the Senate. However, there has been some notable opposition to her appointment.
Glenn Greenwald, a Salon.com blogger who opposes Kagan’s nomination, has written extensively about why the former Dean of Harvard Law School should not be given a seat on the Supreme Court. Basically, his argument boils down to this: Kagan has not published or spoken widely about her views on consititutional law, and thus does not have much public evidence available regarding her judicial philosophy. If we cannot divine her judicial philosophy, says Greenwald, she cannot be nominated—she may end up becoming a traitor to the Obama Justice Department, a nightmare to the left wing. However, he does make some important criticisms, particularly of Kagan’s seemingly broad acceptance of executive power, yet these are based (as far as I can see) on cursory comments from other legal scholars, one article published in the Harvard Law Review in 2001, and a brief section from Kagan’s nomination hearing for Solicitor General. Therefore, I want to address his general claim that a nominee’s ideology should be central to the nomination process. Since President Obama is a “liberal,” the argument goes, he should nominate a reliably “liberal” judge to the Court in order to secure his “liberal” legacy for decades.
Politically, this argument makes perfect sense. To someone genuinely invested in the health of the judicial institution, it does not. Tokenism is denounced in other circumstances, yet somehow it is often supported in Supreme Court nominations. Ideology is seen as key. Commentators tell us that the balance of the Court must be maintained, or shifted to one side or the other, as Presidents are confronted with absences on the Court. But this idea undermines the view of the judge as an independent, sharp thinker. What we really should be looking for is a perceptive legal mind who distrusts overarching judicial philosophy and political ideology, who examines each case without foregone conclusions, who reasons and does not just rationalize.
The Supreme Court, and the judging profession at large, should disdain political influence. A judge must cast a deeply critical eye upon the cases that come before him. He must make a decision grounded in logic and precedent. Rigid ideology does not make for a good judge, because it constrains the logical path he can take down to very few, closely related options. He becomes unable to think critically or (God forbid) change his mind, as he is irretrieveably tied to the positions of a given political camp. It should not be possible to reduce a judge’s record to a single word—“libertarian,” “paleoconservative,” “socialist”—because doing the job right means making decisions that cannot always be labeled. It means thinking. Not of politics, not of petty ideological squabbles, but of the law, above all else.
1 comment:
Glenn and I are not arguing for someone entrenched in a political ideology; I would like a judge that 'fits' my judicial philosophy. His main argument is not that he disagrees with the politics of executive power (even though of course he does), it is that her views on executive power are not consistent with a 'good' judicial philosophy.
Also, this central argument that the supreme court shouldn't be a part of politics is ridiculous. Ideally, you're correct but the reality is that picking Kagan is worse for the country than picking a more 'liberal' judge for the country (in my opinion) because of decisions or lack thereof that she makes.
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