Editorial: Confirm Elena Kagan

Editorial: Confirm Elena Kagan
Copyright by The New York Times
Published: June 30, 2010
http://www.nytimes.com/2010/07/01/opinion/01thu1.html?th=&adxnnl=1&emc=th&adxnnlx=1277996455-IREJ27NAtmiJX6rzSFfobw


Elena Kagan delivered an impressive performance at her Senate confirmation hearing. Assuming the commitments she made were authentic and not simply designed to tranquilize the members of the Judiciary Committee, she could act as an important brake on the current Supreme Court’s alarming tendency to bulldoze through decades of settled precedents. She deserves confirmation as an associate justice.

The hearing was far from illuminating, but it did allow Ms. Kagan to show her fortitude, good humor and, most important, judicial modesty. She said, in dozens of different ways, that she has the highest respect for the legal principle that precedents are to be upheld except in very unusual circumstances. She said precedents should be overturned only if they have proved unworkable over time or have been eroded by other decisions or if important factual circumstances change.

A “doctrine of humility” also entails a respect for Congressional lawmaking, she said, and keeping decisions as narrow as possible in order to enable a wider consensus. “I think results-oriented judging is pretty much the worst kind of judging there is,” she told Senator Ted Kaufman of Delaware, one of many Democrats who blasted the direction of the Roberts court and were seeking assurances that she would not join that march.

Ms. Kagan made it clear that justices need not always bow to the intentions of the Constitution’s authors. She said many of their ideas need to be reinterpreted in light of later advancements, citing search and seizure procedures and whether the First Amendment has anything to do with libel. She rejected the notion that constitutional interpretation is merely a robotic task of calling balls and strikes.

Ms. Kagan stood up firmly to a three-day tantrum thrown by the ranking Republican on the panel, Jeff Sessions of Alabama. He churned considerable political grist out of the nondiscrimination policy at Harvard. That policy, which she defended as law school dean and again this week, barred official campus recruiting by the military because it discriminates against gay men and lesbians. Her defense of Justice Thurgood Marshall from bizarre attacks by Republican senators was heartening.

There is much that we still do not know about Ms. Kagan and her philosophy. It still is not clear where she stands on critical issues of national security, executive power and the growing rights of corporations, and we will not find out until we read her opinions. Democratic senators would have better spent time boring in on those questions than tossing her softballs.

The frustrating lack of enlightenment was hardly surprising given how this process has deteriorated in meaning since the Robert Bork hearings in 1987. Not only are nominees reduced to platitudes about upholding precedents, but even the platitudes are porous. John Roberts Jr. blandly told the Senate that he would respect precedent and act as a passive umpire, then began over-reaching as chief justice to uproot decisions he disliked. Sonia Sotomayor said last year that she understood the individual right to bear arms had been determined by the Supreme Court in 2008, but this week she joined a blistering dissent that said the 2008 decision was wrong. (We agree with her, but her turnaround was striking.)

We hope Ms. Kagan was being candid. Frankly, we had expected somewhat more from her, considering her 1995 article disparaging the hearings process as a “vapid and hollow charade.” She did firmly reassert her position against the military’s “don’t ask, don’t tell” policy and did not shy away from her opposition as solicitor general to the court’s tragic decision to allow unlimited corporate spending in elections. Her legal scholarship has been impressive, as was her work as dean of Harvard Law School and adviser in the Clinton White House. After the hearing, we have increased confidence she will be a good addition to the Supreme Court.