As I have read the articles leading up to the confirmation hearings for Ms. Kagan, and now listened to her testimony before the Senate, the various reporters and pundits have referred to the position she is to fill as “Justice Stevens’ seat” or “the liberal seat” on the Court, conveying the idea that there must be some sort of designation attached to the seat.
It occurs to me that everyone is completely forgetting the point made by Senator Scott Brown — the open position on the Supreme Court, like his open Senate position, is in fact, “the People’s Seat” because it is provided for in the Constitution. Through the consent of the governed, we have provided for our elected representatives to choose this Justice on our behalf.
As such, there is no requirement that the position go to a ‘liberal’ or ‘activist’ or even a ‘conservative.’ The position should be chosen in accordance with the Constitution — the President nominates and individual and the Senate grants its consent. There is no provision in the Constitution that the President is guaranteed that his nomination will be approved, or that there is a specific designation for the position in terms of political or judicial philosophy.
The only consideration should be that the person selected should be the best qualified and sincerely willing to serve the role as Justice to the best of their ability. Our tradition calls for that Justice to be fair, open minded and capable of determining how the facts of the case apply to the intent of the Constitution. To be an effective Justice, then, it would seem that the individual should have a strong background in legal matters pertaining to the Constitution, and a strong familiarity with the legal process.
Ms. Kagan seems to be weak in these qualities. Her inability to clearly articulate the breadth of the Commerce Clause and her stumbling, halting discussion of the aspects of Natural Law (from which our concept of inalienable rights arise) shows that she has a difficult time with basic elements of Constitutional Law.
Ms. Kagan seems to have a strong record — not of weighing Constitutional issues, but of advocacy of very controversial issues. Her involvement in aspects of abortion and gay rights show her to be strongly opinionated in these issues. Because she doesn’t have a long and clear ‘paper trail’ showing her ability to examine issues in a balanced and comprehensive way, we are left with the pieces we have to judge her ability to be impartial. In her own words, she claims “What my political views or my constitutional views are just doesn’t matter.” But the truth is that these matter very much, because no one is able to completely separate themselves from their beliefs and opinions, and the more strongly they are held, the more they will affect their reasoning.
So the question for the Senate remains:
Is Ms. Kagan the most qualified to occupy the People’s Seat on the Supreme Court?
The Senate should carefully weigh their vote before they rush to approve her vote in deference to the President. Choosing an individual steeped in activism and advocacy and then expecting that person to transform into an impartial arbiter is an impressive act of ‘willful suspension of disbelief’ in the words of then Senator Hillary Clinton. Choosing an individual on the outer bounds of issues important to the People is also contrary to the Senate’s role.
I urge everyone to communicate with their Senators on this important issue. This confirmation is being done on our behalf, and our input should be felt.