Why the Kagan Hearings Matter

Elena Kagan's confirmation to the Supreme Court is considered such a sure thing that this week's hearings have assumed an air of dull formality. On Monday, a White House official told me that he hoped the public would tune out entirely by the middle of the week.

That would be unfortunate. For while Kagan's fate may not be in doubt, her confirmation hearings come at a time when the court is shifting ever more firmly to the right. A clear sign of this came in January, with the decision in Citizens United v. Federal Election Commission, which allowed unlimited corporate spending in elections. Kagan herself argued the government's case, and lost. Her views on this pivotal issue matter a great deal, because the growing power of corporations to influence government is likely to preoccupy the court for a generation. Her appearance before the Senate should occasion a national debate.

The very notion that confirmation hearings can provide civic enlightenment has become almost quaint. For years, they have revolved around a single topic: Roe v. Wade. The obsession with social issues reflects the broader cultural debate that has roiled American politics for decades. While important, these disputes have not been hard for nominees to avoid, as most have done. Hearings have become tedious cat-and-mouse affairs in which hostile senators try to pin unpopular views on nominees, who in turn pretend to have no views at all. (Kagan's life is testimony to how far one can take this.) The focus on Roe v. Wade has preempted discussion of most other things, notably the court's dramatic shift rightward on economic and regulatory issues.

The conservative legal movement that powered this originated in the 1960s and '70s in response to court decisions that protected and expanded individual rights, upheld Great Society programs, and set out to limit corporate power. The most famous of these, Brown v. Board of Education, is no longer a subject of bitter dispute, but its expansion of individual liberties remains controversial among some Republicans. The charge that liberals were ''judicial activists'' who were ''legislating from the bench'' was developed by conservatives to discredit these decisions.

Ultimately, that effort succeeded as the conservative court of today came into being. Liberal lawyers of Obama's and Kagan's generation no longer trust the court to act as an agent of progressive social change, as an earlier generation did. In fact, in the session just ended, the court came full circle, displaying a remarkable judicial activism on behalf of conservative causes, Citizens United being the most striking example. The decision overturned a century of doctrine that distinguished between corporate and individuals rights of free speech, out of concern that business interests would come to dominate government. In doing so, the Roberts Court discerned a constitutional right where none had existed before. Kagan's arguments against this could open up a historic debate.

She came prepared to undertake it. Her opening statement in favor of ''judicial modesty'' was mostly misinterpreted as being a mere tactic to disarm conservatives. But it signaled an important jurisprudential shift. Far from submitting to her inquisitors, Kagan was deftly drawing on conservative language to implicitly criticize the activism shown in Citizens United. In effect, the balance of argument has reversed.

This sailed right past some observers. ''Why the obsession with the Citizens United campaign finance case?'' griped a Washington Post columnist. ''Enough already."

The answer is that liberals recognize that citizens' ability to challenge corporate power is being seriously eroded, possibly with profound implications. As the elected branches of government have moved to the left, the court has moved right. In the years ahead, it will likely hear challenges to many of the laws and regulations passed by this Congress, from new rules governing Wall Street to the health care law.

"These hearings are the first national engagement in the major constitutional debate of our time,'' said Michael Waldman, the executive director of the Brennan Center for Justice at NYU School of Law. "And that is, how activist will this court be in using conservative judicial theoriesto block regulation of business? Kagan's is the first nomination of the Citizens United Era, as opposed to Roe v. Wade Era.''

It's hard to imagine a more important debate or someone better suited to conduct it than Elena Kagan. The political risks may not appeal to the White House. But it would be a shame if everyone tunes out just at the point when they should be tuning in.

Joshua Green writes a weekly column for the Boston Globe.

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Joshua Green is a former senior editor at The Atlantic.

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