Kagan Day 2: Candor on the Constitution

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The overnight press accounts of Day Two of the Kagan hearings seemed to find her less forthcoming than they wanted in her to be while answering constitutional questions. (A reader has taken me to task for not chiding her on this, after asking her earlier not to be cautious.) I will admit frankly that I thought the real news out of yesterday's hearings was a brilliant TV debut for a nominee that the public barely knows, one that is likely to make it harder for Republicans to vote against her.  But for those who think I neglected the other theme, I would say that I thought she was actually, at certain points, refreshingly forthcoming.

It is true that she declined to "grade cases," meaning to respond to senators who wanted her to say how much or how little she likes earlier cases like Roe v. Wade or Bush v. Gore.  That, I think, is hardly surprising or improper, since judges must apply decided cases unless there is an unexpected case more or less requiring a fresh look at them.  (On the "activism" front, the latest example is Citizens United v. Federal Election Commission,  in which the conservative majority announced that it could not decide the issue in front of it without overturning an earlier case, Austin v. Michigan Chamber of Commerce.) She did, however, forthrightly state that the recent gun-rights cases were "settled law," which is as close to a commitment not to vote to overrule them as any senator should expect. She also stated clearly that "the continuing holdings of the court are that the woman's life and the woman's health must be respected in any abortion regulation." This is not surprising, but it is a piece of substantive information for viewers interested in this issue.

As the sitting solicitor general, Kagan is doubly constrained: some comments would be improper for a prospective judicial nominee, others improper for a current political appointee. She was, however, willing to talk quite openly about how she had thought about cases and issues on which she had taken a position as solicitor general.  

But there were a couple of occasions on which she stepped up to the plate and made very clear statements about her constitutional methodology--something going beyond the jejune claim that everything is covered by precedent except that which might come before the court and thus can't be discussed.  In the first round of questions, with Chairman Patrick Leahy (D-VT), she directly tackled "original intent"--a bugaboo of conservative Republican senators and their constituents--by stating that the creators of the Fourteenth Amendment "thought that the Fourteenth Amendment was perfectly consistent with segregated schools.  . . .   But step by step, decision by decision, we came to the realization that the principle of equal protection is inconsistent with segregated schools," thus making Brown v. Board of Education a valid and defensible example of how change arises in the Constitution.

Endorsing Brown may seem, to most readers, the safest thing possible.  But to say that it is inconsistent with "original intent" sets off alarm bells among conservatives.  Sen. John Cornyn, a former Texas appellate judge, came back to this point in his questions.  He noted that many scholars believe that the creators did intend schools to be desegregated--then immediately weakened his point by citing the words of the late Sen. Charles Sumner (R-MA), who was not a creator of the Fourteenth Amendment.  Nonetheless, it was a substantive discussion of constitutional interpretation and legal change, one that walked unafraid right up to one of the many live rails of the current constitutional debate.  I am sure it gave Constitution buffs at home something to talk about.

It also led Sen. Tom Coburn (R-OK) to a near-Beckian dithyramb about original intent as the only valid basis for constitutional interpretation.  Coburn, who is an almost endearingly naive non-lawyer, seemed to have the fixed idea that he could get Kagan to agree in advance to vote against the constitutionality of the Obama health-care plan.  He asked her how she would vote if he successfully sponsored a bill requiring Americans to eat a specified number of servings of fruits and vegetables every day.  She immediately responded, "Sounds like a dumb law."

Now, readers and viewers may have gleaned from yesterday's events that Elena Kagan is a little bit of a wiseacre, or, perhaps more precisely, an endearingly cheeky woman.  But she went beyond the "dumb law" trope to discuss an important point (one that, though she didn't mention it, a number of current justices don't seem to remember): that judges do not sit to evaluate the wisdom of congressional acts, but only whether they are within the power of Congress. It included an eloquent threnody to the late Justice Oliver Wendell Holmes, Jr., who doughtily insisted throughout the Progressive era that political majorities had the right to enact statutes that he thought of as thick-witted. It fit quite neatly in with her consistent theme that judges should be humble and restrained.

In the end, it was Coburn who seemed to be pleading with her to be a judicial activist. "The commerce clause has got us into a position where we have a $1.6 trillion deficit," he said.  Remarkably enough, he then added that, unless the court was willing to gut current economic legislation, the people would have no recourse but to elect a new Congress.

Cheeky though she is, Kagan did not point out that electing a new Congress was precisely what the Constitution suggested the people do in such a case.  Even for forthright and cheeky nominees, some truths are too true to utter.

More coverage:

Kagan Day 2: A TV Star Is Born

Kagan Day 1: 'Vacuity and Farce,' the Sequel

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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