How Not to Fight Kagan

July 7th, 2010 at 6:44 pm | 18 Comments |

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In the past few weeks, an outfit called Judicial Crisis Network has been leading the opposition (such as it is) to Elena Kagan’s nomination to the Supreme Court.  Mostly, JCN simply confirms what everybody already knows: Kagan is a liberal and holds views disagreeable to conservatives. Executive Director Garry Marx lists them as follows: “Partial-birth abortion, check. Homosexual marriage, check. Gun bans, check.” (My friend and law school classmate Carrie Severino sums up Kagan’s record in greater detail here.) If elevated to the bench, JCN says, Kagan will simply “rubber-stamp” Obama’s agenda.

All fine. For those who wish to take ideology into account, JSN has accurately proved that Kagan leans left.  Still, even if you concede that ideology is relevant to a nominee’s qualifications…  why do JCN’s statements have to be so cringe-inducing? For, not content to enumerate the ways in which Kagan is a liberal (she doesn’t like gun rights, defends partial birth abortion, supports gay rights, etc), JCN denies that Kagan even believes in the Constitution or “the principles of the Declaration of Independence.”  Marx closes one philippic against her with the claim, “Americans of all political persuasions should be outraged at this president’s commitment to lawlessness.”

Now, this is all very rich coming from an organization that has made the nakedly partisan “rubber stamp” talking point the central theme of its campaign.  More importantly, none of it is even true.  Take the charge that Kagan rejects the Declaration of Independence. The supposed evidence comes from this exchange between Kagan and Senator Coburn:

COBURN: So — so you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution, that they’re ours, ours alone, and that the government doesn’t give those to us?

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: Well, I understand that. Well, I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I — I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or…

COBURN: I — I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN: I — I think you should want me to act on the basis of law, and — and that is what I have upheld to do, if I’m fortunate enough to be concerned — to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

In other words, Kagan denies that she rejects the natural rights philosophy of the Declaration. “I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws,” Kagan says. Rather, as she goes on to explain, she does not believe that as a judge she should decide cases based on these natural rights. Coburn indeed was probably trying to trap Kagan into admitting that she believed in natural rights. That would have given Republicans — and JCN — an opening to lambast Kagan as a potentially lawless judge who will put her own personal moral views ahead of the Constitution.

Moreover, Kagan’s position on the Declaration is the very one championed by leading judicial conservatives.  Justice Scalia, in his dissent in Troxel v. Granville (2000), went even further than Kagan: he admitted his own views as to what rights the Declaration enshrined, but denied that he had any business deciding cases in order to uphold them.  JCN counters that Kagan must have forgotten the Tenth Amendment– probably meaning to say the Ninth Amendment, which refers to unenumerated rights not otherwise mentioned in the Constitution.  (The 10th Amendment reserves powers to the people rather than rights.)  Well, on that subject, no less a judicial conservative than Robert Bork famously compared the Ninth Amendment to an unintelligible “ink blot.”  Both Scalia’s and Bork’s views on unenumerated rights — that is, rights not specifically protected by the language of the Constitution — are highly controversial, including (perhaps especially) among conservatives and libertarians. What is not controversial is that Scalia and Bork are judicial conservatives who are utterly acceptable to JCN and its allies. Alluding to the story of David and Goliath, JCN calls Kagan’s “refusal to embrace the Declaration” one of “five smooth stones” with which to slay the giant Kagan. Not only did Kagan not so refuse, but the point is flagrantly opportunistic.

Finally, JCN charges that Kagan isn’t committed to the Constitution — meaning, that she will “rubber stamp” (not strike down as unconstitutional) any legislation that Obama has signed.  This puts JCN in the awkward position of advocating “judicial activism” rather than “judicial restraint,” at least as those words are understood in their ordinary lexical senses.  JCN escapes this position in the only way possible: by conceding that judges have the power of judicial review and therefore should indeed strike down unconstitutional laws.

This is not the place to resolve the weighty question of the proper role of judges in our republic. At least this much is clear:  JCN likes decisions that have struck down gun-control laws, campaign finance laws, and federal laws regulating intra-state activity; it does not like decisions that have struck down laws regulating abortion or defining marriage as between a man and a woman; but it likes decisions that have upheld — against constitutional attack — laws denying funds to universities that bar military recruiters.  No doubt a constitutional scholar or other could come up with a theory defending this pattern as consistent with the Constitution. Still, the pattern is not so obviously correct that anybody who rejects it must be committed to “lawlessness.”  On the contrary, even among conservatives, perhaps only a minority accept the pattern as correct in every detail. Of course, JCN has no intention of applying its own standards to every nominee.  What it calls “lawless” is merely “what we have discovered Kagan to believe.”

One hardly expects JCN to come out and confess that they no more care about the proper role of judges or the true meaning of the Constitution than their opponents. Still, JCN’s accusations against Kagan have risen to a level of preposterousness that discredits its own message — not to mention the message of conservative and libertarian jurists and legal scholars more generally.  For the conservative movement, JCN is another “Mark Levin” problem:  When you see conservatives tolerating absurd arguments merely because they (supposedly) further the cause, you have to wonder whether the movement as a whole can be trusted.

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18 Comments so far ↓

  • Slide

    Well, really does it come as any surprise that the right will say anything in opposition to Obama? Death panels anyone? Watching the hearings was interesting as Republican Senators, when they weren’t bashing Thurgood Marshall that is, were tying themselves in knots on the issue of “judicial activism” which, as Mr. Bramwell aptly points out, really just means any decision that they happen to disagree with. Excellent post. Conservatives would be wise to heed the warning of the danger in not “calling out” absurd arguments that seem to further their side. Credibility once lost is difficult to recover.

    Oh, and if they want to start somewhere they should say something about the below comment from Rush Limbaugh:

    “Who is Obama? Why is he doing this? Why? Why is he doing it? Is he stupid? Is it an accident? Is he doing it on purpose or what have you? … I think we face something we’ve never faced before in the country — and that is, we’re now governed by people who do not like the country, who do not have the same reverence for it that we do. Our greatest threat (and this is saying something) is internal… That word ‘payback’ is not mine, [but] it is exactly how I think Obama looks at the country: It’s payback time… There’s no question that payback is what this administration is all about, presiding over the decline of the United States of America, and doing so happily,”

    Pretty reprehensible isn’t it? Remember the reaction when used the term “General Betray-Us”? You would have thought it was the greatest crime in the world. But here we basically have Rush, who has millions and millions of followers, accusing the President of treason on racial grounds. Despicable. Will anyone (outside of FF) say so? Lets see.

  • msmilack

    Good post, I agree with you.

  • Chris

    I never quite understood the point to Coburn’s or Grassley’s discussions on this. All I can see here are two possibilities: (A) she says “no” and then she’s portrayed to the base as Godless, or she says (B) ‘yes’ and then she’s not Godless but she admits that she’s a judicial activist, willing to use extra-Constitutional beliefs/documents in reaching decision. At that point you have to ask whether this would make Grassley or Coburn happy. Would they be looking for a judicial activist?

    The purpose to this whole line of questioning is unclear to me.

  • LFC

    The purpose to this whole line of questioning is unclear to me.

    It’s simply fishing for a sound bite that can be taken out of context, or can be misinterpreted by the questioner in any way they find politically advantageous.

    In other words, it’s bulls**t.

  • LFC

    Did any of these snapperheads ask her something like; “You have absolutely no experience behind the bench. What makes you feel you are qualified to make the highest court decisions on the law of the land when you’ve never even so much as decided if a speeding ticket was legally handed out?”

  • Darksider

    “It’s simply fishing for a sound bite that can be taken out of context, or can be misinterpreted by the questioner in any way they find politically advantageous.

    In other words, it’s bulls**t.”
    Also known as politics as usual.

  • Kevin B

    I have to confess I’ve never been sold on the idea of inalienable rights.

    My dictionary defines inalienable as “unable to be taken away from or given away by the possessor”. So how could a country which practiced slavery be founded on the idea that liberty can’t be taken away or given away? How can a country which has the death penalty be founded on the idea that life can’t be taken away?

    I can’t think of anyone who isn’t going to hedge on the “inalienable” part. There will be circumstances where the possessor forfeits his right to freedom, or even life. It’s why we have prisons. And soldiers. And if rights can be forfeited, they aren’t “inalienable.”

    Our founding fathers were smart to back off this meme when they wrote the Constitution. No inalienable rights there, and no creator to endow them. Just a contract between the government and the governed.

    Kagan was also smart to dodge this line of questioning. Constitutional rights are the ones she will be expected to defend.

  • Chris


    In the beginning, blacks were not seen as rights-holders, so although it was an odious doctrine (slavery), it wasn’t necessarily inconsistent with the belief about the inalienable nature of rights. Also, some suggest (like John Locke) that rights-holders are rational beings (not people, per se). Once you stop acting rationally (say, when you murder people) you cease to be a rights-holder. So for someone arguing like that, the death penalty wouldn’t be inconsistent.

    Still, I agree with your main point about Kagan.

  • busboy33

    “Ah, yes, the ‘unalienable rights.’ Each year someone quotes that magnificent poetry. Life? What ‘right’ to life has a man who is drowning in the Pacific? The ocean will not hearken to his cries. What ‘right’ to life has a man who must die if he is to save his children? If he chooses to save his own life, does he do so as a matter of ‘right’? If two men are starving and cannibalism is the only alternative to death, which man’s right is ‘unalienable’? And is it ‘right’?

    As to liberty, the heroes who signed that great document pledged themselves to buy liberty with their lives. Liberty is always unalienable; it must be redeemed regularly with the blood of patriots or it is always vanquished. Of all the so-called ‘natural human rights’ that have ever been invented, liberty is least likely to be cheap and is never free of cost.

    The third ‘right’? – the ‘pursuit of happiness’? It is indeed unalienable but it is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore. Cast me into a dungeon, burn me at the stake, crown me king of kings, I can ‘pursue happiness’ as long as my brain lives – but neither gods nor saints, wise men nor subtle drugs, can insure that I will catch it.”

    Col. Dubois from Starship Troopers by Robert A. Heinlein

  • Kevin B

    Once you stop acting rationally (say, when you murder people) you cease to be a rights-holder. So for someone arguing like that, the death penalty wouldn’t be inconsistent.It’s totally inconsistent with the statement that those rights cannot, absolutely cannot, be taken away or surrendered. Once someone (like John Locke) starts coming up with exceptions, the word “inalienable” becomes meaningless.

  • Demosthenes

    Excellent post about Ms. Kagan. The whole confirmation process is a complete joke. She is qualified. She is liberal. So is the president that nominated her. Elections have consequences, so is this at all remarkable? Pres. Bush nominated two far right wingers, and in opposition to Democrats bleating about the nominees’ extreme right wing views, the mantra was elections have consequences. More of the same.

  • Chris


    No, in such a case it doesn’t become meaningless. The right is still inalienably held by any and all rational beings. Under such a framework, no rational being can have his/her rights taken away. A murderer is not rational, hence, is not a member of the class of beings with those rights and protections. There are actually lots of other arguments for the consistency of ‘inalienable’ and ‘imprisonment’ in the rights literature.

    By the way, I’d argue that one problem with making rights political settlements only is that it strips people of a great deal of their moral arguments against such-and-such odious practices. If rights are merely political settlements, it’s hard to see why slavery was wrong, if blacks were not a part of the political settlement that granted rights in the US (or elsewhere). After all, it was perfectly legal. Basically, the whole notion of human rights gets tossed out the window.

  • Kevin B


    The phrase in the Declaration of Independence doesn’t say “rational beings.” It says “all men.” I’m arguing against that.

  • Chris


    My point was that arguments can be made for connecting “inalienable” with “death penalty” or whatever. In this case, though, that’s fine, but it still depends on what is meant by “all men”. It didn’t include blacks, we know that.

    Beyond that, even if it means “all human beings” there’s a difference between having a right taken away and having a right’s enjoyment suppressed due to the latter person attempting to arbitrarily remove the rights of others at whim. Suppressing doesn’t mean revoking. I don’t know of any rights framework that says that because you have inalienable rights you can do whatever you want to whomever you want. The understanding is usually that the political settlement is not what determines the rights you actually ‘”have” but rather the restrictions (and the circumstances in which those restrictions are justly applied) that people agree to on those rights in order for the government to play its role — to protect the inalienable rights of its citizens.

    I don’t think there’s any inconsistency in the majority of such cases, though I think some have a good argument for saying that the death penalty is not just because it’s not a restriction of a right’s enjoyment, it’s a permanent revocation for arbitrary or whimsical reasons. But in any case, restrictions on the whole don’t seem generally inconsistent to me.

  • Kevin B

    That’s my problem with the phrase in the Declaration of Independence. To be true, you have to redefine words. “All men” means “all men, except certain men”, or “inalienable” means “unable to be taken away or surrendered except in certain circumstances (which will be decided later at the whim of people OTHER THAN the king of England)”

    No animal shall sleep in a bed WITH SHEETS
    No animal shall kill any other animal WITHOUT CAUSE
    No animal shall drink alcohol TO EXCESS

    Certain rights are inalienable, WITHOUT CAUSE for alienating them

    I guess my ultimate point is that no right is inalienable (since it is absolutely possible to deny them). All rights are granted to people by people.

  • Chris


    I think you’ve missed my point. The argument would be that rights are inalienably yours, and not so because people give them to you. You don’t “have them” due to political agreement. However, if you want to live in a society, you may agree to conditions under which those rights may be suppressed (not given up — suppressed) for the good of the whole, conditions of which the settlement hashes out. That doesn’t make your rights any less inalienable. Some rights, it may well be, cannot be suppressed under any political agreement. For instance, I may agree to be your slave, but I cannot give up or fully agree to the complete suppression of my right to freedom. In other words, the moment I decide not to be your slave I am not. That doesn’t mean you can’t force me to be, but it I’d still possess the inalienable right to my freedom, regardless of what you do. Moreover, you might agree by majority political settlement that blacks should be enslaved starting tomorrow. You might even get away with it. But it wouldn’t mean that they no longer had the right. It would just mean that they aren’t enjoying it. The distinction is necessary or any conduct is potentially just — since justice under such a framework, like rights, would just be a matter of political settlement. Basically, if enough agree, slavery is just fine.

  • Kevin B


    Is there a list of these rights, or are they limited to just those three (life, liberty, pursuit of happiness)?

    Are they always self-evident?

    Was it self-evident that blacks had the same rights as whites when Jefferson wrote the words? Is it self-evident now? How can a truth be self-evident at one time and not at another? How can it be self-evident, when it’s not even evident to many of the people who wrote and signed the document?

  • Kevin B

    One more: Do you think we have inalienable rights that we don’t know about yet (as the slaves and slaveholders in 1776 had, but didn’t know about)?