Kagan's Fascinating Conversations

A judge's job is to recognize and apply the values of the Constitution, and that isn't something a robot can do.

By Marge Baker

Before the hearings for Elena Kagan's confirmation to the Supreme Court began, the media and political insiders agreed on one thing. It wasn't that Solicitor General Kagan would come off as too conservative or too liberal, as some commentators claimed. Everyone expected that the confirmation hearings would be boring.

And everyone was wrong.

More than with any hearings in recent memory, perhaps since those of Robert Bork, Americans learned how this nominee would approach the law and her role as a Supreme Court Justice. She was as erudite, personable and witty as Chief Justice Roberts was during his hearings but, unlike Roberts, Kagan also offered real substance for anyone willing to listen and real evidence that our debate around the Supreme Court is starting to change for the better.

Kagan said a great deal in her testimony about how judges should approach congressional statutes, and argued for significant deference to legislators and reluctance to strike down federal law. Even when invited to take on straw men, she went to great lengths to describe the latitude that Congress should be allowed. She even pointed to Justice Oliver Wendell Holmes, approvingly noting that he "hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves."

In applying laws passed by Congress, she emphasized looking at what Congress wanted to accomplish and examining the record it assembled when passing a law. Her testimony made an unmistakable argument both for the importance of judges' responsibility to uphold the Constitution and for the limits of what judges should do.

Maybe even more importantly, Kagan showed a surprising willingness to take on right-wing code words that have hobbled our conversation for years. Her response to Sen. Amy Klobuchar's question about John Roberts' umpire analogy is a prime example. Kagan's answer to the Minnesota Democrat eviscerated the metaphor that conservatives have been praising for years--she argued that far from just calling balls and strikes, a judge's job is to recognize and apply the values of the Constitution, and that isn't something a robot can do.

Americans aren't happy with the results of President George W. Bush's appointment of John Roberts and Samuel Alito. A recent poll conducted by People For the American Way confirms what most people already know: Americans are profoundly worried about corporate influence in our political system and deeply disagree with the Court's ruling in Citizens United, which said that corporations have the same rights as people to take sides in an election. The same is true of other cases. The standard GOP talking points ("judicial activism," "original intent," "not legislating from the bench") aren't ringing true anymore, and there's room for a richer debate than the one we've been having for the last few decades.

For years, the right wing made the courts a red-meat issue by focusing exclusively on the issues they cared about: criminalizing all abortions, denying gay rights, and outlawing flag burning. Those issues remain important, but the right-wing strategy is running out of gas--those issues barely warranted a mention at the hearings. Instead we were treated to a real conversation about how the Court and the Constitution impact the lives of individual Americans.

Hopefully, in the years to come, we'll have more of that conversation. And if our national dialogue around these issues is as "boring" as the Kagan hearings, it's going to be a fascinating conversation, indeed.