Obama’s Stealth SCOTUS Pick

May 12th, 2010 at 12:05 am | 11 Comments |

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Elena Kagan’s confirmation may be inevitable, but her style of judging and her interpretative philosophy are unknown.  Nevertheless, I’ll venture a guess: she’ll be a moderately liberal, moderately predictable justice similar to David Souter.  And I’ll venture another guess: when I flip the coin that currently resides in my pocket, it will land on heads.  The Supreme Court has become unquestionably important, yet here we are, deciding its membership with little information.  That her nomination comes from a liberal president is rife with irony.

In his short tract Active Liberty, Justice Stephen Breyer argues that the goal of increasing participation in American democracy should guide Supreme Court decision-making.  So when the Court ruled in 2003 that race could play a factor in the admissions decisions of the University of Michigan Law School, one justification was that successful participation in America’s diverse civil society required exposure to diversity during the formative law school experience.

The reasoning of the Court differs from the conversation of the general populace.  When affirmative action comes up, liberals insist that we need to rectify past injustices while conservatives respond that two wrongs don’t make a right.  Both miss the point.  As Breyer notes, Michigan Law—the pro-affirmative action voice—didn’t press the “historical discrimination” argument.

I actually find the Court’s reasoning rather persuasive, but some social scientists (like John McWhorter) don’t.  They think that affirmative action creates an entitlement structure that ultimately harms the favored race.  But it doesn’t matter what I think, and it doesn’t matter what John McWhorter thinks, and quite frankly, it doesn’t matter what you think, either.  The Supreme Court has annexed the deliberative process and decision making.  In our government of the People, the opinions of most people simply don’t matter.

Affirmative action is only one example.  On abortion, gay marriage and the role of religion in the public sphere, the real debates occur in courtrooms and law schools—not town halls, churches and schools.  And while the Court interferes in many areas of governance, other unelected bureaucracies follow suit.  Even the healthcare debate, fractious as it was, was at least partially a ruse.  So much of actual health policy will be made by unelected regulators determining what insurance policies satisfy their arbitrary standard.  And of course, the most powerful man in the world is not Barack Obama, but our brilliant—and unelected—Federal Reserve Chairman Ben Bernanke.

Our Founders established a Republic, and that inevitably means that our representatives—not us, at least not directly—govern our country.  That’s fine.  I don’t want Athenian or even Californian-style democracy, and I shudder at the thought of Congressmen Ron Paul and Barney Frank voting on monetary policy.  But this is not what James Madison had in mind.  The meaning of “equal protection under the laws,” and indeed, what our society means by “life” are especially important questions, and while the Supreme Court should set boundaries, it shouldn’t involve itself in the minutia of answering them.  In today’s America, it does.

Liberals might counter that on campaign finance and gun control, the constitutional minimalists on the right have subverted the will of the People, too.  Maybe the liberals have a point, maybe they don’t.  But the larger issue remains: should judges approach the law with an eye toward deciding public policy, or investing power, whenever possible, in the deliberations of citizens?  When the standards of decency evolve in our society, should people or their judges decide how the law evolves to fit?

This gives us a standard by which we should measure Elena Kagan.  Any opinion is admittedly premature.  It’s depressing that our government decides on such an important policy maker without knowing a thing about her.  As David Brooks wrote today, her entire life is an exercise in avoiding controversy.  But decades from now, will we say that she contributed to the continual erosion of the People’s responsibility for governance?  The fact that we have absolutely no idea what our answer might be is the strongest reason to oppose her nomination.

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11 Comments so far ↓

  • balconesfault

    I actually find the Court’s reasoning rather persuasive, but some social scientists (like John McWhorter) don’t. They think that affirmative action creates an entitlement structure that ultimately harms the favored race. But it doesn’t matter what I think, and it doesn’t matter what John McWhorter thinks, and quite frankly, it doesn’t matter what you think, either. The Supreme Court has annexed the deliberative process and decision making. In our government of the People, the opinions of most people simply don’t matter.

    You do realize, of course, that the Supreme Court did not create affirmative action – but simply has based their rulings on executive orders (made by Presidents who were elected by The People) and Congressional legislation (such as the Civil Rights Act of 1964 and the Rehabilitation Act of 1973) (passed by legislators who were elected by The People).

    It seems what you are hoping for is actually a Court which would overturn those Congressional Actions. Some good old “Judicial Activism”, right?

    And of course, the most powerful man in the world is not Barack Obama, but our brilliant—and unelected—Federal Reserve Chairman Ben Bernanke.

    Heh. Not so much.

  • mlindroo

    > should judges approach the law with an eye toward deciding public policy,
    > or investing power, whenever possible, in the deliberations of citizens?
    > When the standards of decency evolve in our society,
    > should people or their judges decide how the law evolves to fit?

    J.D.Hamel’s argument would carry more weight if the votes of all citizens were equal, and if all adults were allowed to vote. This clearly was not the case in the 1950s when the Supreme Court essentially imposed racial integration on the Deep South, over strenuous objections of Bill Buckley’s NATIONAL REVIEW as well as most white social conservatives I might add…. Today, similar discrimination no longer exists on a large scale but the system (thanks to the Senate, the first-past-the-post voting system and the de-facto requirement of a 60-40 supermajority) still favors sparsely populated rural states and rural districts in general.

    Since the Founders decided to have a Supreme Court comprising unelected judges without term limits and conservatives, of course, regard the status quo as sacrosanct and divinely inspired, liberals might just as well try to ruthlessly operate within the system. In the early 1950s racial discrimination was still not regarded as incompatible with the 14th Amendment according to earlier rulings by the Supreme Court. Hamel probably does not like Brown vs. Board on procedural grounds but, five decades later, does anyone still argue that the Supremes made the wrong decision? Black suffering would most likely have continued for decades if “The People” had been allowed to settle the issue by voting to end racial segregation.

    MARCU$

  • TerryF98

    Ridiculous premise, dumb conclusion.

    Why do we have hearings? To find out about and question the nominee and approve him or her. Supreme court picks are not appointed in a vacuum. They go through the most rigorous debate and investigative process of any public figure.

    And to say that judicial activism is a trait of the left in the wake of the citizens united ruling is laughable. Please try again mr Hamel this time massive fail.

  • ottovbvs

    “The fact that we have absolutely no idea what our answer might be is the strongest reason to oppose her nomination.”

    ……..Actually we know a lot about her and Hamel (in complete contradiction to his basic point) makes some quite probable suppositions about how she’ll turn out……….she is certainly likely to be a lot more predictable than the Republican appointed David Souter (ouch!) and if lack of judicial record is a disqualifier then I take it Mr Hamel believes Rehnquist should never have been on the court

  • JD Hamel

    The 1964 Civil Rights Act forbids discrimination on the basis of sex and race. Neither an executive order nor a school policy (backed up by a Court decision) make affirmative action any less discriminatory. Like I said, I think the Court’s argument FOR affirmative action is persuasive, but it’s an argument that legislators should consider and then affirm by statutes. Thanks largely to the Court’s intervention, affirmative action isn’t something we discuss intelligently (or meaningfully).

    Mlindroo: If conservatives engage in activism (I didn’t address the issue in detail because it’s peripheral to my argument), then it’s still wrong. I don’t care who’s doing it–it’s bad for our “procedural republic.”

    Terry: Perhaps you haven’t watched a confirmation hearing in the last two decades, but during them you learn nothing of substance about a nominee. The fact that our nomination process has become so dull and meaningless makes it much more important that a nominee has led a career of substance. (Or maybe Kagan will actually say something worthwhile during her hearings, which would set her apart from every nominee in recent history.)

    Otto: No, a guess is just that. I made a guess about how she’d turn out. I really don’t know, I admitted I don’t know, and the fact that I do not know makes me wary of her nomination. And because the nomination process is considered something to survive instead of an opportunity to articulate a judicial philosophy, Kagan’s nomination is not analogous to Rehnquist’s. During his confirmation hearing, he made substantive remarks. If recent history is any indicator, Kagan will not.

  • JD Hamel

    Oh, and I forgot something.

    I do not oppose Brown v. Board on procedural grounds. Bork has written that because the equality and separation were proven by circumstances to contradict each other, the Court had to choose between one or the other. Because equality was written into the law and separation was not, the only procedurally (and morally) appropriate decision was to throw out Plessy.

    And I highly doubt that the National Review opposed Brown, considering the case was decided in 1954, and Buckley didn’t begin National Review until 1955.

  • balconesfault

    Actually, the National Review did oppose Brown as applied, urging the South to use force if necessary to reject the “will of the majority”:

    “National Review believes that the South’s premises are correct. If the majority wills what is socially atavistic, then to thwart the majority may be, though undemocratic, enlightened. It is more important for any community, anywhere in the world, to affirm and live by civilized standards, than to bow to the demands of the numerical majority. Sometimes it becomes impossible to assert the will of a minority, in which case it must give way; and the society will regress; sometimes the numerical minority cannot prevail except by violence: then it must determine whether the prevalence of its will is worth the terrible price of violence”

  • TerryF98

    Mr Hamel.

    I watched the last hearing very closely. I saw Republican members concentrate pretty nearly exclusively on the “Wise Latina” remark. So I understand the lack of seriousness in the process. I thought the Democrats did a decent job of covering the candidate, and Sotamayor herself gave substantive answers to questions.

    The thing is if the system according to you is not working then improve the system. The knee-jerk reaction by Republicans to ANY Obama pick according to a leaked GOP memo is to oppose and delay. So it really does not matter who he picks.

    Kagan has a body of work, have you read it all? She has a public history, have you researched it?

    You give no substantive reasons to object to her becoming a Supreme court justice, it seems like another knee-jerk reaction to me.

    Terry: Perhaps you haven’t watched a confirmation hearing in the last two decades, but during them you learn nothing of substance about a nominee. The fact that our nomination process has become so dull and meaningless makes it much more important that a nominee has led a career of substance. (Or maybe Kagan will actually say something worthwhile during her hearings, which would set her apart from every nominee in recent history.

  • TerryF98

    “It’s depressing that our government decides on such an important policy maker without knowing a thing about her. ”

    This is a ridiculous statement. The fact that you are ignorant of her is no indication that the Obama administration is foisting a candidate unknown to them. Do you really believe that they just picked her out of a hat? They will have done intensive research into her background and ideals.

    She is not Harriet Miers Mr Hamel. The fact that Bush tried to pitch Miers to the Supreme court does not mean that Obama is following that route. He is far too smart to try and do that.

  • Rabiner

    “On abortion, gay marriage and the role of religion in the public sphere, the real debates occur in courtrooms and law schools—not town halls, churches and schools. And while the Court interferes in many areas of governance, other unelected bureaucracies follow suit. Even the healthcare debate, fractious as it was, was at least partially a ruse”

    On these issues I’d rather an enlightened unelected group of judges rule than allow the majority of people vote to deny rights to individuals. Abortion is being chipped away at every year by Conservative states like Oklahoma. Gay Marriage is gays being denied legal rights provided to every other couple in this Country. And the role of religion being decided by these people sure is good considering I’m not Christian and can’t stand the thought of having their superstitions be imposed on me in public life.

  • ktward

    And while the Court interferes in many areas of governance, other unelected bureaucracies follow suit.

    The court interferes? Those justices. They’re always on The Hill kickin’ it with our legislators. And crank-calling POTUS.

    Mr. Hamel.
    There are precisely three ‘areas of governance’, and SCOTUS is the highest incarnation of one of them. Their express purpose is to interpret challenged law within an arguably complex Constitutional framework. They’re not out trolling for legislation to tinker with, with some grander agenda in mind. Judicial philosophies notwithstanding, it can sometimes get ugly and it’s incumbent upon our legislators to regroup, as we see happening right now post Citizen’s United.
    http://www.scotusblog.com/2010/01/analysis-a-new-law-to-offset-citizens-united/

    will we say that she contributed to the continual erosion of the People’s responsibility for governance? The fact that we have absolutely no idea what our answer might be is the strongest reason to oppose her nomination.

    I honestly have no idea what you mean by ‘continual erosion …’(what’s your counter to this ‘erosion’? shall we scrap our judicial branch?)
    Barring an ugly skeleton in her closet, opposing Kagan’s nomination is pissing in the wind; there simply aren’t enough Republican votes to block her sans filibuster.

    Three days into the nomination, not much has changed. No Democrat has opposed Elena Kagan; no Republican has endorsed her. No Senator or serious commentator has suggested that she won’t be confirmed, or that the nomination should or would be filibustered.
    http://www.scotusblog.com/2010/05/overlooked-points-in-the-coverage-of-the-kagan-nomination/

    (Or maybe Kagan will actually say something worthwhile during her hearings, which would set her apart from every nominee in recent history.)

    To your point, Kagan’s somewhat ‘cheeky’1995 review of Stephen Carter’s,The Confirmation Mess, is sure to spice up these particular hearings. I can hardly wait.