Solicitor General Elena Kagan on her second day of SCOTUS confirmation hearings. (Photo: Sarah Mamula / talkradionews)
Critics of the Senate's confirmation hearings for Supreme Court nominee Elena Kagan are right to complain that the proceedings have degenerated into little more than political theater and grandstanding. The real tragedy behind the hearings, however, is not that they've become a bore, but that Democratic politicians and journalists are passing on a golden opportunity to challenge long-held conservative legal myths regarding the importance of judicial "objectivity" and "impartiality." Democratic Sen. Al Franken (who sits on the Senate Judiciary Committee) might have learned this lesson if he weren't so busy sleeping during the confirmation process and drawing doodles of Republican Sen. Jeff Sessions.
Rather than challenge the fiction that the nomination and confirmation process - in addition to judicial decision making - are "objective," political officials and mass media have often reinforced this propaganda. Kagan herself disingenuously pledged during the hearings to serve in "every case impartially, modestly, with commitment to principle and in accordance with the law." She dodged many questions regarding her own legal beliefs (on questions such as gun rights and abortion), thereby implying that they would not interfere with her legal decisions. Similarly, Sessions subscribed to the notion of judicial "impartiality" when he attacked Kagan for having "associated herself with well known activist judges." Conservatives rallied behind Sessions with their warnings about Kagan's "liberal" activism.
The Senate Judiciary Committee spin was little more than a retread of that seen during the Sotomayor hearings, when conservatives attacked the now-Supreme Court justice after she suggested that her background as a "wise Latina woman" would help her make sound legal decisions. Republicans at the time attacked her for introducing her own "decision making based upon her biases and prejudices" into the legal process - biases that would inevitably "affect her rulings."
For their part, journalists are echoing official misinformation. A Lexis Nexis database search of the last few days (June 27 to 29) finds dozens of references on Fox, MSNBC and CNN to the importance of Kagan being judicially "impartial" and "objective" and addressing warnings about "judicial activism." When pundits in cable news (such as Maddow, Schultze and Olbermann) did step outside the "judicial objectivity" smokescreen, it was only to make the hearings into little more than a partisan dispute, framing Democrats as one-upping Republicans on major points related to the confirmation process.
Americans would do well to remember Kagan's past condemnations of confirmation hearings as little more than instilling empty "lessons of cynicism" and as a "vapid and hollow charade." Any notion that politicians can "take politics out" of the confirmation process - as suggested in recent political rhetoric - is absurd. Equally absurd is the notion that justices themselves have political opinions that they can separate from their rulings and legal reasoning. In reality, judicial activist claims, when applied to nominees like Kagan, is little more than conservative speak for: "you're not far enough to the right" in your legal opinions. Little else explains why senators like Sessions condemn Kagan one minute for refusing to be "objective" and then grill her the next for not being supportive enough of armed recruitment on university campuses.
For those still unconvinced of the folly of the theory of "judicial impartiality," a bit of context is in order. Legal scholars have long understood an effective way to predict the direction a justice's rulings is to know first, the ideological philosophy of the president who appointed them; and second, the ideological direction of the justice's past rulings. Justices' prejudices are understood to operate according to an "attitudinal model" of judicial process. Legal Scholars Jeffrey Segal and Harold Spaeth conclude through their exhaustive empirical study of the Supreme Court that "no more than plain meaning [of legal texts and laws] and [original] intent does [legal] precedent restrict the justices' discretion in the types of cases that come before it." The application of constitutional (or original) intent is of little to no value for understanding legal decisions on many issues, since the developments facing Americans today were not foreseen by the founding fathers (such as the right to abortion, protection of net neutrality or proper limits on corporate campaign contributions). "Objectively" following legal precedent, by itself, also does little to "determine" a court ruling, since judges can easily find precedents that exist on both sides of a case. Rather, "justices make decisions by considering the facts of the case in light of their ideological attitudes and values." This is the case, Segal and Spaeth argue, in great part because the legal "creation of the judiciary as an independent coordinate branch of the government has appreciably promoted the policy making capabilities of federal judges in general and that of the Supreme Court in particular."
Conservatives in this country are often happy to abandon their support for "constitutional originalism" and "judicial objectivity" when the rulings benefit corporate America or their own political causes. The nakedly partisan ruling in Bush v. Gore, in which the Supreme Court voted 5-4 to end a Florida state recount that would have provided Al Gore with a victory in the 2000 presidential election, is a perfect example. Conservatives long sang praise for "devolution" - whereby the federal government "gets out of the way" of local politics in order to empower the states - but that legal philosophy was promptly abandoned when the Supreme Court overturned a Florida Supreme Court ruling mandating a state ballot recount. The arguments provided by the Supreme Court majority (in which the court's conservatives ruled in favor of ending the recount and installing Bush) rightly framed a continued recount as threatening "irreparable harm" to Bush, "by casting a cloud upon what he claims to be the legitimacy of his election."
The majority also argued - in blatant violation of the "states rights" legal doctrine - that allowing individual Florida counties to count their ballots in different ways constituted a violation of the "equal protection clause" of the Constitution (and ` Amendment) since not all ballots would be counted the same. Of course, if anyone took this argument seriously (or sought to apply it across the board), it would immediately invalidate all vote counting standards throughout the country (since the means of conducting elections and counting ballots have traditionally been left to state and local governments). The Supreme Court, in their politicized pro-Republican ruling, obviously knew this, which is why they ruled that their decision regarding recount methods would only apply to the Bush v. Gore ruling and not to any other elections in the future. The cynical legal reasoning claiming that a recount of votes could ensure a Bush loss was allowed to stand, despite the court minority's warning that "preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." This warning was prescient, although this hardly deterred a court majority set on seeing the rise of the Bush regime.
Constitutional originalism (the notion that justices can objectively apply the original intent of the Constitution to court rulings) may be popular among conservatives, but it is little more than a fraud when it comes to legal practice. Progressives could be forgiven, for example, for wondering what part of the Constitution specifically validates Supreme Court Justice Antonin Scalia's dissent against condemnation of his court's efforts to strike down state anti-sodomy laws in 2003. At the time, Scalia argued against the majority ruling, "the court has largely signed on to the so-called homosexual agenda" likening the striking down of anti-sodomy laws to the condoning of "bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity." If anything, Scalia's contempt for homosexuals stands in direct contradiction to constitutional law, which protects all individuals, regardless of their sexual orientation, under the Equal Protection Clause of the 14th Amendment.
Progressives are also left to wonder what part of the Constitution specifically says that a corporation should be allowed "free speech" rights greater than an individual person. Many of the founding fathers were against corporations entirely and there is not a single reference to corporations or corporate rights anywhere in the Constitution. The "corporate money equals free speech" philosophy, nonetheless, was embraced in a recent Supreme Court ruling (in early 2010) that struck down local laws intent on imposing limits on corporate campaign contributions and television political advertising before elections. Disturbingly, Kagan has indicated that she will not oppose this ruling, although this affirmation of corporate power was predictably ignored by conservatives lambasting her lack of judicial "objectivity."
Rather than engaging in harmful debates about the need for judicial "objectivity," progressives should be asking whether candidates like Kagan consistently appear on the wrong sides of important legal issues (see Ralph Nader's recent piece: "36 Questions for Elena Kagan"). Rather than stressing the need for "dispassionate restraint," Americans should be questioning why Kagan appears to side with corporate America over the public when it comes to electoral laws. The Warren Court of the 1950s gained fame because of its commitment to promoting social justice and the civil rights movement against a corrupt, racist status quo. Why the court couldn't again be made to serve progressive, democratic interests is a question we should all be asking.