Solicitor General Kagan is, according to every report I’ve ever heard, a generous, thoughtful, and decent person. She was a very successful dean at Harvard Law School. She will almost certainly be confirmed. Yes, she will be asked—and should be asked—straightforward and tough-but-fair questions about her views, her record, and her understanding of the judicial role. (Indeed, she is on record as believing that senators should ask such questions, and expect answers to them.) Many Republican senators will vote “no”, if only to register a protest against the shameful way Justice Alito’s nomination was treated by their Democratic colleagues. But, she will be confirmed. And she will probably serve on the Court for more than twenty years.
No one should think that this nomination is inconsequential. Some commentators have suggested that it will change little—that the Court’s “balance” will stay the same—because the President is simply replacing one “liberal” justice (Justice Stevens) with another. This is not the right way to view the matter, though. With the confirmation of Justice Sotomayor, and now with this nomination, President Obama is entrenching (as any President would want to do) on the Court a particular approach—his approach—to constitutional interpretation. A “conservative”, attached to a different approach, may someday win back the White House, but he or she will probably have to settle for playing defense with his or her Supreme Court selections.
With his second Supreme Court pick—and, to be clear, he will almost certainly have more—President Obama is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt. Future elections might undo some of the President’s policies, but his views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely on the Court. Again, elections matter.
Rick Garnett is professor of law at the University of Notre Dame.
May 10th, 2010 | 10:57 am
[...] Rick Garnett makes the absolute right point here – elections matter: With his second Supreme Court [...]
May 10th, 2010 | 11:32 am
We’re getting what our friends in the Administration @ ND wanted, much to the
dismay of us many ND alumni and alumni
parents. Sleep with the dogs, you wake up
with fleas.
May 10th, 2010 | 4:45 pm
Concerning the nomination of Elena Kegan to be associate justice of the Supreme Court: 1) The law exists to control personal feelings and beliefs. 2) All individual lawyers and public legal servants must swear and oath to uphold and defend the Constitution of these United States. Said Constitution states:
Article 1 Section 8: Congress shall have the power…..To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
Using these explicit powers Congress passed the “Don’t ask, Don’t tell,” law concerning homosexuals in the land and naval Forces.
As the Dean of Harvard Law School, Ms Kegan, who should have been expected to be a shining example of upholding the law, instead used her authority as the dean to forbid military recruiting at Harvard. Pray tell: How can Congress raise and support Armies in a voluntary force if the military cannot recruit? On the practical level, the Oath that Ms Kegan took as a lawyer seems to have less moral force than her personal feelings concerning “Don’t ask, Don’t tell.”
On a practical level would you trust with your money a person that cannot appreciate oaths?
Note, this has nothing to do with “Don’t ask, Don’t tell.” It has everything to do with a person living the life in a consistent manner as defined by the oath of their profession.
May 11th, 2010 | 12:10 pm
This post might be more compelling if there was a strong argument, from anyone, that “elections do NOT matter.”
I was hoping from a professor of law at the University of Notre Dame something that might give, say, a Catholic perspective on Kagan’s nomination or her fitness for the Court or her legal thinking or non-thinking, or…sumpin.’
May 11th, 2010 | 12:55 pm
The fact that half the economy has been nationalized and our children are going to be impoverished for the next 40 years proves that elections matter–one lousy Supreme Court appointment is a drop in the bucket. Keep your eye on the ball, people.
May 11th, 2010 | 4:08 pm
I really don’t think that Kagan’s appointment is reason for concern. After all, a certain appointment of Gerald Ford’s, could have easily caused liberals to sink into despair.
Therefore, based on all descriptions of Kagan’s character, that she uses sophisticated legal reasoning, and is open minded, there’s reasonable hope that she could turn into the nemisis of a Stephens.
May 11th, 2010 | 7:47 pm
Yes, Elections matter.
Next time, when thoughtful people suggest that our president is wrecking the budget and engaging in an ill advised war and is not even pro-life in any even, they will not be scorned as “unpatriotic.”
Next time, pro lifers may realize they can’t get the whole cake. You want pro-life? You may have to give up the currently popular war. Por-life voters made their choice: war.
The subsequent predictable “Anybody but Bush” avalanche doomed any chance of a pro life Supreme Court appointment because, frankly, those who were pro-life, in the end, simply didn’t care enough to reach out to their fellow voters to form any kind of majority coalition to nominate a candidate that would win elections and themn nominate suitable Supreme Court justices.
In Politics, elecitons matter. Abortion doesn’t
Links
Blogs
Find Us
Contact