How should conservatives react to President Obama's nomination of Elena Kagan?
First, let me say how conservatives should not react. They should not claim that Kagan is the Democrats Harriet Miers. She is not. I myself opposed the President Bush's nomination of Miers, as did most conservatives, on the ground that her record, though perfectly respectable, was not distinguished. Kagan's record, by contrast, is distinguished. If she were a committed constitutionalist, as conservatives understand that idea, we would, rightly, be celebrating the nomination of a person of her ability and distinction.
Furthermore, conservatives should not speculate or entertain speculation regarding Kagan's romantic interests, feelings, or "sexual orientation." Some of this has gone on in the media (and not just among conservatives), and it is despicable. (Indeed, I find it so loathesome that I am reluctant to bring the subject up, even for the purpose of condemning it.) Kagan has done nothing to bring her personal life or private feelings into public view and no one can point to anything in her record as a professor, dean, or White House official that raises questions to which facts about her romantic interests or inward feelings are relevant. It is true that Kagan fiercely opposed the Solomon Amendment and argued that it is unconstitutional (an argument that not even John Paul Stevens or Ruth Ginsburg was willing to swallow); but her position was scarcely idiosyncratic among liberals and there is no reason to suppose that it was the product of personal interests or bias.
What is relevant is Kagan's understanding of the proper role of courts in our system of government under the Constitution. And that should be the focus of conservatives' concerns. If, indeed, Kagan believes it is legitimate for judges to read into the Constitution liberal (or, for that matter, conservative) views about abortion, sexuality and marriage, religion, speech, or anything else, then she should be opposed for that reason. In my judgment, a constitutionalist is someone who believes that the legitimate sources of constitutional meaning are the text of the Constitution, the logical presuppositions and implications of its provisions, its structure, and its publicly understood historical (or "original") meaning. A jurist who is willing to look beyond these sources of meaning in order to reach outcomes in line with his or her moral and political preferences undermines the Constitution by usurping authority it allocates to other actors in the system.
Conservatives pride themselves on their commitment to constitutionalism, even if conservative jurists themselves do not always live up to its ideals. The President's nomination of Elena Kagan provides conservatives with an opportunity to defend these ideals, educate the public regarding their importance, and, most importantly, test the nominee by reference to them. If Kagan is to be opposed, it should be because, under questioning about abortion, marriage, and other issues, she fails the test. Kagan herself is on the public record as validating the legitimacy of such questioning. So the stage is set for a long overdue national discussion of the scope and limits of judicial power under the Constitution.
For the sake of the country, I pray that Republicans will not squander this opportunity by making dubious or unworthy claims about Elena Kagan, and that Kagan will remain as good as her word by responding candidly to questions that will reveal to the public her understanding of the role of the judiciary in our constitutional system.
Tuesday, May 11, 2010
Allan Mollohan is a pro-life Democrat who has for twenty-eight years represented the congressional district in West Virginia in which I grew up. Today he was trounced (56%-44%) in the primary by a pro-life challenger, Michael Oliverio. Mollohan's vote in favor of a health care bill that failed to secure Hyde Amendment protection to unborn children and pro-life taxpayers probably cost him his seat. I suspect that the Obama administration and the Democratic leadership in Congress will tell a different story. They will say that ethics problems sank the veteran congressman. But that claim is dubious. Mollohan has been under an ethics cloud for several years, but (like the late John Murtha, a pro-life Democrat in the Pennsylvania district just north of Mollohan's West Virginia district, who was also under an ethics cloud) he was returned to office in 2008 despite the cloud. Members of my family and friends in the district tell me that Mollohan would have prevailed today had it not been for what pro-life West Virginians perceived as a betrayal. It will be interesting to see now what happens to other pro-life Democrats who supported the Senate version of the health care bill, such as Brad Ellsworth in Indiana, Steve Driehaus in Ohio, and Kathy Dalhkemper in Pennsylvania. They have been targeted by, among other pro-life groups, Susan B. Anthony's List, the pro-life political organization whose television and radio ads and robo calling were instrumental in bringing down Mollohan---a congressman the organization had supported in previous elections.
I gave the following statement to the American Principles Project on President Obama's nomination of Elena Kagan.
In Elena Kagan, President Obama has nominated a person of great intellectual attainment, and unquestioned personal integrity. In these important respects, she is a nominee much in the mode of both nominees of the President's predecessor, George W. Bush, namely: John Roberts and Samuel Alito. There are some who argue that intellectual ability and personal probity are sufficient qualifications for someone to serve on the Supreme Court of the United States. President Obama disagrees with that position, and I believe he is right to reject it. In explaining his decisions to vote against the confirmation of Chief Justice Roberts and Justice Alito, then-Senator Obama explained that a suitable justice must have a sound view of the role of the courts in our Constitutional system. Again, I agree.
Where I believe President Obama errs is in his view of the proper role of the courts. In envisaging courts as agents of social change unconstrained by the text, logic, structure, and original understanding of the Constitution, he misunderstands the important but limited role of judges in our constitutional system. The judicial office is not a license for jurists to usurp the authority of legislators, or impose on the nation their preferred ideas about social justice or personal rights. When judges do that, in the name of a right to abortion, for example, or to redefine marriage or drive religion from public life, they betray the Constitution in whose name they purport to act.
So, Solicitor General Kagan's nomination to the Supreme Court provides an important opportunity for a national conversation on the proper role of the judiciary in our system of democratic republican government. Senators should follow the President's lead and advice in questioning the nominee closely about her view of the role of judges, and oppose confirmation if they find that she espouses a view contrary to the one they believe to be proper under the Constitution. To this end, as Kagan herself noted in relation to previous Supreme Court nominees, it is imperative that she answer questions about particular issues, including abortion, marriage, and the role of religious faith in American public life. For her to decline to answer such questions would be not only to contradict herself but to undermine the valuable opportunity for a serious discussion of the role of courts that her nomination presents.
Because I know Solicitor General Kagan to be a person of integrity, I do not expect her to attempt to evade questions whose legitimacy she affirmed when the nominees of previous presidents were under consideration. Moreover, with an overwhelming Democratic majority in the United States Senate at the moment, her candor would be unlikely to place her confirmation in jeopardy.
As Dean of Harvard Law School, Kagan's openness toward the serious engagement of competing points of view led to discussions that enriched the intellectual life of the community she served. By making possible a serious discussion of the vital question of the role of courts in our constitutional system, she is in a position to confer an equally valuable gift on the nation.
This is no time for her to go silent.
Here is what Gerry (Trinity College Dublin, Law) has to say:
MOJers may
be interested in a speech delivered by Dublin Archbishop Diarmuid Martin last night in
which he said, inter alia, that he was 'disheartened and discouraged about the
[low] level of willingness [within the Church] to really begin what is going to be a
painful path of renewal and of what is involved in that renewal'.
He also
said,"There are still strong forces which would prefer that the truth did not
emerge. The truth will make us free, even when that truth is uncomfortable.
There are signs of subconscious denial on the part of many about the extent of
the abuse which occurred within the Church of Jesus Christ in Ireland and how it
was covered up. There are other signs of rejection of a sense of responsibility
for what had happened. There are worrying signs that despite solid regulations
and norms these are not being followed with the rigour
required....
.....There
are those who claim that the media strategy of the Church in the Archdiocese of
Dublin following the publication of the Murphy Report was “catastrophic”. My
answer is that what the Murphy report narrated was catastrophic and that the
only honest reaction of the Church was to publicly admit that the manner in
which that catastrophe was addressed was spectacularly wrong; spectacularly
wrong “full stop”; not spectacularly wrong, “but…” You cannot sound-byte your
way out of a catastrophe."
The full text is available here.
