Tuesday, July 6, 2010


By Kelly Sloan
This week, the confirmation hearings for Elena Kagan, nominee for Supreme Court Justice, have been in full swing.

There is little question, from a conservative standpoint, that Kagan is a terrible choice; her demonstrated contempt for the military, expansionist view of the commerce clause, the controversy surrounding her edits to a document regarding partial birth abortion, statements that she believes precedent trumps original intent, and other red flags indicating that she has about as much regard for the constitution as she does for the Marines, should all be cause for alarm among those who view the role of the court as interpretive, not legislative. On the other hand what, exactly, did we expect?

Elections have consequences, it is often accurately said, one of which is the Presidential prerogative to nominate higher court justices. The senate, in turn, retains the responsibility to confirm the President’s choice, after adjudicating whether or not that person is qualified for the position at hand. Traditionally, this was not a huge deal – the judicial branch, while technically equal to the other two branches of government, was initially intended to be the least influential, least powerful (and most boring) of the three branches, inasmuch as its role was simply to review laws and policies created elsewhere in the government to ensure they fit within the criteria of the Constitution. A rather bland, technical job to be sure.

All that changed, most explicitly in the late 1930’s under the Hughes and Stone Supreme Courts, which began to make accommodations in their interpretations to allow FDR’s New Deal policies to pass constitutional scrutiny. This activist approach to the judiciary went into overdrive later under the Warren and Burger courts, which suddenly began to find all kinds of things in the Constitution which had not existed previously. With these developments, the Supreme Court adopted a whole new level of importance, as it shifted its purview from strict interpretation, to the formation of public policy.

This was of particular benefit to the left. When one starts to look outside the strictures of the Constitution for rationales to base judicial decisions on, there is not much to find beyond personal bias. Therefore, liberals have labored for decades to stack the courts with their ideological soulmates, hence Supreme Court decisions which are tendentiously egalitarian and expansionist in nature.

This brings us back to Ms. Kagan’s nomination. She is the perfect fit for the left’s ideal Court – activist, egalitarian, unrestrained by the supreme law of the land, all reasons for Republicans to vigorously oppose her nomination, and reveal as much about her philosophical make-up as possible. At the same time, they need to be realistic about it.

Kagan will get the nomination, regardless of her qualifications, bias, or performance at the hearings (which reveal little of importance at any rate – the last nominee to tell the Senate hearing what he actually thought was Robert Bork; since then most nominees try as hard as possible to prove, like David Souter, that they have no thoughts) The courts are second only to academia as the left’s principal avenue for advancement of their ideology – where the schools and colleges are breeding grounds for influencing public opinion, the courts get to bypass that by not only affecting policy directly, but by then cementing it into the American legal system. The Democrats are not about to let this opportunity go to waste. Even if a filibuster were successful (odds are against it), who do we really believe Obama will offer in Kagan’s place? A strict constructionist who will uphold the original intent of the constitution and strike down expansionist laws?

The Republicans need to focus the debate onto how we got in this position in the first place. They do that by highlighting just how pernicious an influence Kagan will be on the bench, thereby reiterating to the voters why it is so important to take their public duties seriously each November. We restore the Supreme Court to its proper function by replacing the Senators who confirm, and the President who nominates, its Justices.

In the meantime we should also all pray determinedly for the health and long life of Justices Roberts, Scalia, Thomas, and Alito.

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