Here is my initial take on Elena Kagan’s opening statement before the Senate Judiciary Committee today, which I will cross-post at the Federalist Society’s online debate over Kagan’s confirmation:
I opened this debate by predicting that, during her confirmation hearing, Elena Kagan would more or less “follow Sonia Sotomayor’s example and articulate a traditional, reasonably conservative vision” of the Supreme Court’s role. In her opening statement today, Kagan followed that example more rather than less. As with Sotomayor’s articulated vision, Kagan’s could have come from the lips of John Roberts. Indeed, it could have come from a standard issue high school civics textbook of yesteryear.
Kagan must have been tempted to bring along a sign saying, “I spent two decades in the upper reaches of legal academia to say this?”
There is little indication that the Committee members were buying it. Nor should they. It’s certainly not the approach employed by Kagan’s judicial heroes, Thurgood Marshall and Israeli Supreme Court Justice Aharon Barak. The latter jurist, described by Kagan as the “judge who has best advanced democracy, human rights, the rule of law, and justice,” is famous for his unabashed efforts to “expand” Israel’s basic laws, which he equates with a constitution. According to Richard Posner, in an article about Barak called “Enlightened Despot”, the Israeli judge “created out of whole cloth a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.”
There is every reason to believe that, if confirmed, Kagan will, in fact, become one of our very most aggressive justices.
But Kagan’s disingenuous opening statement is useful for one purpose, if only an academic one: it reminds us that the “judicial mainstream” is located about where John Roberts and Samuel Alito stand. Otherwise, Sonia Sotomayor and Elena Kagan would not need to sound so much like them when they seek approval from the nation’s elected representatives.