It is a foregone conclusion: Elena Kagan will be confirmed, becoming some day in the very near future a Justice on the U.S. Supreme Court. So do her confirmation hearings have a purpose? Yes. Somebody said on a commentary show last night (I’m afraid I can’t remember who-I was reading and just this morning realized what a good point it was) how the Kagan hearings can be used. People can be reminded by these proceedings that elections have consequences.
Both Republicans and Democrats can use the hearings to lay out their view of what is required in a Supreme Court justice: Should the justice believe, as the late Thurgood Marshall did, that a justice must do what he considers the right thing and that law will catch up? Or does this approach border on lawlessness, neglecting the magnificent eighteenth-century document that was created by the best and brightest of 1787?
Senator John Kyle, for example, made a tough opening statement against the Kagan nomination. Will he manage to halt it? Absolutely not. But he can raise questions about judicial philosophy: “He questioned her choice of judicial heroes, Aharon Barak and Thurgood Marshall, and accused her of embracing their activist philosophies,” is how The Corner summarizes Kyle’s opening remarks.
We noted in the Inkwell yesterday that some of Elena Kagan’s natural allies in liberal organizations are ambivalent about her nomination. Like Kyle, these organizations won’t dereail the nomination. But they will make their case for what a justice should be. Some of these groups are uneasy because, as dean of the Harvard Law School, Kagan didn’t hire a single Latino or Latin American professor.
So here you have two very clear views of what a Justice should be. Think about it next time you cast a vote in a presidential campaign. Remember: Justice Kagan will most likely be a key figure on the American legal scene long after Sasha and Malia are grown-ups.