Your Guide to the Elena Kagan Hearings

The confirmation hearing for Supreme Court nominee Elena Kagan officially began on Monday with the traditional Senatorial bloviating. What all did they  cover in the 3 hours of Senatorial opening statements? For starters Senators Sessions, Hatch, and Kyl did their best to ressurect the ghosts of  Orval Faubus, George Wallace and Bull Connor.  TPM reports:

Looks like Senate Judiciary Republicans have at least one unified talking point today: Justice Thurgood Marshall, the first African-American to ever serve on the Supreme Court, was an “activist judge.” As Elena Kagan kept on her listening face, multiple senators slammed both Marshall’s judicial philosophy and her service as his clerk in the late 1980s.

Ranking member Sen. Jeff Sessions (R-AL) criticized Kagan for having “associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge’s preferred social policies,” citing Marshall as his son, Thurgood Marshall Jr., sat in the audience of the Judiciary Committee hearings.

In an example of how much the GOP focused on Marshall, his name came up 35 times. President Obama’s name was mentioned just 14 times today.

Sessions said Kagan’s reverence for Marshall “tells us much about the nominee,” and he meant that more as an indictment than a compliment…

“[I]t is more about his judicial philosophy what concerns me and this has already been mentioned it is clear he considered himself a judicial activist and was unapologetic about it,” Sen. John Cornyn (R-TX) told Kagan.

“There’s no doubt that he was an activist judge,” Sen. Orrin Hatch (R-UT) said on MSNBC today when taking a break from the hearing. Hatch lauded Marshall’s role in helping African Americans “be more accepted in society,” but criticized his decisions on the court. “Let’s admire the man for the great things he did, but let’s not walk over and wipe out the things that really didn’t make sense as an obedient student of the practice of law,” Hatch said.

Sen. Jon Kyl (R-AZ) said he doesn’t consider Marshall’s judicial philosophy to be “mainstream,” and Kyl said Kagan seems to “enthusiastically embrace” Marshall’s philosophy by labeling it a “thing of glory.” He pointed to her clerkship record and said it shows “naked political judgment.”

I’ll leave it to Sir Charles to sum up my feelings on this despicable display:

These moral and intellectual pygmies had the nerve to insult one of the giants of the law in the history of this country, a man whose courage and cool helped tens of millions of Americans finally receive equal status under the law, and in the process, helped redeem this nation of some of its great original sin…

I can’t imagine too many people more worthy of the role of hero to anyone who practices law for a living.  But you can hear the barely disguised racism in Kyl’s remarks regarding why he views Kagan’s choice of hero with scorn… Mmmm, I wonder what “class of litigant” that might be?

So now that the obligatory GOP race-baiting is out of the way its on to the “substantive” portion of the hearings beginning today. Adam Serwer has put together a handy guide to the planned GOP smears, errr, I mean, questions.

Elena Kagan is as blank of a slate as any nominee for the Court can hope to be and liberal Democrats plan to use this opportunity to begin a concerted push back against the ever broadening powers of corporations over individual citizens. E.J. Dionne reports in TNR:

Democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis…

They will be pushing the narrative away from the hot-button social issues that have been a distraction from the main game: the use of the Supreme Court as a redoubt against progressive legislation, the right of plaintiffs to call corporations to account before juries, and the ability of the political system to protect itself against corruption.

Leading this charge will be two recently elected Democratic senators who are free of the constraints imposed by the controversies of the past, Sheldon Whitehouse of Rhode Island and Al Franken of Minnesota…

[Whitehouse] will link this argument with a challenge to the Supreme Court’s appalling Citizens United decision, which gives corporations virtually unlimited rights to spend money to influence elections. Invoking the baseball umpire metaphor made popular by Roberts, Whitehouse observed that “corporations have a different strike zone in the Supreme Court than regular people.”…

The time has come, Franken said in an interview, for progressives to recognize that Roe v. Wade has distracted attention from what is now at the heart of the judicial controversy: the ability of individuals to assert their rights against corporations.

“If you use a credit card, if you work, if you drink water, you’re affected by the court,” he said. “Roe is important, but there’s this whole other area we weren’t talking about.”

For once it appears that we’ll see fireworks emanating from the left of the Senate Judiciary committee. This is a line of attack that is long overdue and Whitehouse and Franken’s arguments are well founded. In fact Justice Sotamayor, in her first questions as a Justice, pressed this very issue in Citizens United. She noted the conservative Justice’s flagrant activism in the case and also questioning the idea of corporate 1st Amendment rights. The latter theme was then expounded upon in Justice Stevens’ lengthy dissent.

So, while Elena Kagan herself may not have much of interest to say, the hearing should make for good political theater nonetheless.

Photo by Harvard Law Record

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