If someone awakening from a coma clicked into a major media website, that person could justifiably wonder if Elena Kagan is being examined to fill some newly-created and dauntingly powerful position. "Is there a new presidential cabinet post, the Secretary of Interior, Exterior, and All Points Between? No? Then why all the fuss?"
Kagan has been appointed to occupy one seat on one Supreme Court. That's all.
Unfortunately, as all the buzz illustrates, that is not all. If we take a moment to examine the premises of all this concern over Kagan's partisan loyalties, we will acknowledge the Court has grown far too powerful--unconstitutionally powerful. Were Court justices to simply follow the Constitution and defer to the people in the legislative process, why would we care about the partisan leanings of appointees?
Asking whether or not Kagan is too liberal is a political question reserved for election cycles, not confirmation hearings. For decades the Court has settled political and social issues it has no constitutional business settling, hence it holds great power over the lives and freedoms of every American. In this constitutionally misaligned setting, the justices are in a position to institutionalize their partisan policy preferences. These policy preferences are cemented in the "precedent" (known as stare decisis)of the Court's decisions. Precedent is right up there with the text of the Constitution itself when it comes to influencing how future Courts settle future, unforeseeable controversies. If partisan policy goes into the making of precedent, judges can determine public policy for generations to come.
This is not the legitimate role of the Court. And this should not be.
Appointees should be chosen, questioned, approved, and held accountable by the standard of "judicial restraint." "Will you or will you not restrain yourself to the Constitution and openly reject judicial legislation?" should be the paramount question at the Senate confirmation hearings.
Now to pick on Senator Coburn. He drops the ball in his opening remarks to Kagan. The senator starts off well enough, stating it is his intent to determine whether or not Kagan has the "appropriate judicial philosophy." He then slides off into irrelevant questioning such as whether or not she will "do what's best for the country" (starting at 1:55). Do? Do what from the bench? What is best for the country is that the Court follows the Constitution and not further subvert the self-government of a free constitutional republican people. Coburn really drops the ball in his closing remarks with his view of the "real measure" of a court justice (3:56)
The other two branches of the federal government have for decades abdicated their constitutional responsibilities to keep the Court in line, so we are now left with combing through any partisan bread crumb on whatever "paper trail" we can find. (Pardon the mixed metaphors.)
Leaving the only constitutional "check" on the Court to these dog-and-pony shows in the Senate confirmations hearings is terribly out of step with the constitutional structure of the Court and its relation with Congress, the executive branch, and our liberties. During the debates before the Constitution was ratified, Alexander Hamilton, writing in Federalist Paper #78 under the pseudonym, "Publius," calmed public anxieties about the would-be judiciary in the Constitution. Many people feared the Court would become too powerful. Publius assures the public that
"...though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive."Hamilton was pointing to the judiciary's separation from the legislature and executive, stressing that the Court has neither the purse nor will of Congress, neither does it have the sword and force of the president. But the Court must remain distinct from the other branches of the federal government in an additional and important matter: The Court needs to be restrained from reaching into the political and social issues left to the other branches of government. Judicial activism, and all the partisanship and legislating from the bench that that entails, makes the Court too much like Congress, just another partisan branch of the government setting policy that governs the lives and liberties of Americans.
The most assuring opening remarks Ms. Kagan could make would be, "Hi. I am very liberal. And these are the reasons why that should not concern anyone..."
