Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, May 12, 2010

Conservatives and the Kagan nomination

How should conservatives react to President Obama's nomination of Elena Kagan?

First, let me say how conservatives should not react.  They should not claim that Kagan is the Democrats Harriet Miers.  She is not.  I myself opposed the President Bush's nomination of Miers, as did most conservatives, on the ground that her record, though perfectly respectable, was not distinguished.  Kagan's record, by contrast, is distinguished.  If she were a committed constitutionalist, as conservatives understand that idea, we would, rightly, be celebrating the nomination of a person of her ability and distinction.

Furthermore, conservatives should not speculate or entertain speculation regarding Kagan's romantic interests, feelings, or "sexual orientation."  Some of this has gone on in the media (and not just among conservatives), and it is despicable.  (Indeed, I find it so loathesome that I am reluctant to bring the subject up, even for the purpose of condemning it.)  Kagan has done nothing to bring her personal life or private feelings into public view and no one can point to anything in her record as a professor, dean, or White House official that raises questions to which facts about her romantic interests or inward feelings are relevant.  It is true that Kagan fiercely opposed the Solomon Amendment and argued that it is unconstitutional (an argument that not even John Paul Stevens or Ruth Ginsburg was willing to swallow); but her position was scarcely idiosyncratic among liberals and there is no reason to suppose that it was the product of personal interests or bias.

What is relevant is Kagan's understanding of the proper role of courts in our system of government under the Constitution.  And that should be the focus of conservatives' concerns.  If, indeed, Kagan believes it is legitimate for judges to read into the Constitution liberal (or, for that matter, conservative) views about abortion, sexuality and marriage, religion, speech, or anything else, then she should be opposed for that reason.  In my judgment, a constitutionalist is someone who believes that the legitimate sources of constitutional meaning are the text of the Constitution, the logical presuppositions and implications of its provisions, its structure, and its publicly understood historical (or "original") meaning.  A jurist who is willing to look beyond these sources of meaning in order to reach outcomes in line with his or her moral and political preferences undermines the Constitution by usurping authority it allocates to other actors in the system.

Conservatives pride themselves on their commitment to constitutionalism, even if conservative jurists themselves do not always live up to its ideals.  The President's nomination of Elena Kagan provides conservatives with an opportunity to defend these ideals, educate the public regarding their importance, and, most importantly, test the nominee by reference to them.  If Kagan is to be opposed, it should be because, under questioning about abortion, marriage, and other issues, she fails the test.  Kagan herself is on the public record as validating the legitimacy of such questioning.  So the stage is set for a long overdue national discussion of the scope and limits of judicial power under the Constitution.

For the sake of the country, I pray that Republicans will not squander this opportunity by making dubious or unworthy claims about Elena Kagan, and that Kagan will remain as good as her word by responding candidly to questions that will reveal to the public her understanding of the role of the judiciary in our constitutional system. 


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