The 'Scalia of the Left' Speaks Out on Kagan Hearings

A prominent legal liberal once said, "You know what would be like Christmas morning? Pam Karlan nominated to the Supreme Court." Why is Karlan the dream choice, the "Scalia of the left?" Because she brings to bear just not a great mind but a great mouth: Karlan is about the wittiest speaker (and writer) who is also a genuinely brilliant legal scholar. And she would make history as America's first openly gay justice.

Karlan always seems to grace the media's short-list but never the president's. Not that she expects to:  "I can tell you what I really think," Karlan told me, "because I don't ever have to worry about a confirmation." The following is a condensed version of our conversation--about what she "really thinks" of the Kagan hearings:

BG: What was your reaction to watching the hearings this week? Did anything about them surprise you?

PK:  I thought they were more revealing about the state of politics and the state of the Senate than they were about Kagan. I found it fascinating that Justice Marshall became the example of what Republicans don't want in a judge--a rather odd and scary thing.

BG:  We'll come back to Justice Marshall, but were these particular hearings--to quote Kagan--a "vapid and hollow charade"?

PK: Well they weren't super illuminating. They were a little illuminating in the sense that Kagan refused to tow the "umpire" line, which was useful. I mean, in interpreting the Constitution, everybody looks at the text, everybody thinks about the original meaning and the consequences. Constitutional analysis is multifaceted. What gets to the Supreme Court are hard cases and there's no mechanical answer to decide them.

BG: Did Kagan break any new ground in terms of what nominees can say without shooting themselves?

PK: No.

BG: But when she said she opposes "don't ask don't tell," should she have really done that if the standard is, don't comment on stuff that may come before the Court?

PK: Nobody takes seriously the idea that you can't comment before you get to the Court. Everybody comments on Brown and that comes before the Court. So many cases are about what Brown means, does it apply to affirmative action, and other issues.

BG: How would you have answered Senator Coburn's question--obviously just a way to ask about the the individual mandate in the health care law--that if the Congress passed a law mandating every American to eat three fruits and vegetables a day, and it were signed by the president, would the Commerce Clause allow it?

PK: That's just such an inane question. It presupposes what Congress would do. And the question would be, under what circumstances? What would their aims be? The problem with the analogy is that individuals have a liberty interest in choosing what to eat. They have a right to bodily autonomy in terms of what they ingest. The question the Court would ask is how do you balance government's legitimate interests against the rights of individuals. And I think what you eat every day is quite a different kind of balance, quite a different kind of intrusion, than saying you have to buy insurance. You don't even have to accept the health care. But today, you can't drive a car unless you buy a license--the government forces you to do that, and buy insurance. You can't travel abroad unless you pay the government for a passport.

BG: Do you agree with Senator Graham's definition that an activist judge "is somebody who rules the way you don't like?"

PK: Bertrand Russell was once asked how to conjugate an irregular verb. And he said the way he does it is, "I am firm, you are obstinate, he is a pig-headed fool." Well, it's true for how people view judges, "I'm principled, you're results-oriented, he's an activist." Lindsey Graham is absolutely right about this.

BG: Should Kagan have been clearer about her views? Should she have said more?

PK: What possible advantage does she have in doing that? She's got a bully pulpit to educate people and share her views once she's on the Court. That's a much bigger platform than if she's rejected.

BG: Do you agree with the idea, in the wake of the 2nd Amendment cases and Citizens United, that legal conservatives are the new activists?

PK: Look, both sides are willing to strike down laws. Conservatives would strike down laws liberals would uphold and liberals would strike down laws conservatives would uphold. How can you say one is activist? It's about which parts of the Constitution you think are at play and which parts reach the issue that's in front of you. Scalia, for example, is expansive in his view of what speech means but not in his view of what liberty means.

BG: Do you worry at all about Kagan's relative dearth of experience--either in terms of practicing law or not having served as a judge?

PK: It'll be interesting to see. It depends on the kinds of cases she decides. None of these people [on the current Court] has had extensive experience defending a criminal defendant. None of these folks has extensive experience litigating structural reform cases. Thurgood Marshall did both.

BG: Speaking of Thurgood Marshall, why do you think we saw all these attacks on his record?

PK: Part of it was convenience. It's a way to tar her as a liberal. The only outright liberals with whom she's associated, as opposed to Democrats, are Ab Mikva or Thurgood Marshall. Most Americans are never going to understand who Ab Mikva is. So, fortituously, she clerked for Marshall. I guess some parts of the Republican Party feel safe forgetting the civil rights struggle because of Barack Obama and the bridge. I mean, Marshall went on the Supreme Court the year of Loving [the case that struck down Virginia's law prohibiting interracial marriage]. People forget what America was like before Thurgood Marshall. People can think that he was some crazy radical man. But if you think he was wrong, then you think Brown was wrong. It's staggering Orrin Hatch would say he's not sure he could confirm Marshall who was the greatest lawyer of his generation, who did more to bring about the Constitution we know and celebrate than anyone else

of his generation.

BG: Which senator do you think handled himself or herself most effectively?

PK: Well, it's hard to do this without bringing your biases. I thought Klobuchar was terrific, I thought Franken was terrific. Those two seemed to be the most personally invested in their questions.

Full disclosure: I was a student of Karlan's earlier this year. And yes, I received my grade months ago, so I actually believe what I wrote above.