Elena Kagan and ‘Law All the Way Down’
Elena Kagan has spent the majority of her legal career as an educator and it showed Tuesday, when she seized the opportunity provided by her confirmation hearings to explain what it is that judges do. In delivering the lesson, she didn’t speak to the senators (or the American people) like they were children by offering palatable but misleading metaphors about judging as if it were as simple as calling balls and strikes. Instead, she articulated the fact that some provisions of the Constitution are vague, sometimes they’re not directly translatable to modern circumstances, and other times multiple constitutional principals conflict with one another. To solve such quandaries, Kagan didn’t advise whipping out the Ouija board to divine the Framers’ original intent or how the text was understood when the Constitution was drafted. In those instances, she explained, judges deploy research into precedent and critical reasoning to come upon a decision.
That may seem elementary, yet an exchange with Sen. Tom Coburn late in the day crystallized the necessity of her lesson. The Oklahoma Republican questioned the legitimacy of a judge identifying constitutional ambiguity. “But that’s a judgemental decision, correct?” Coburn began. “You’re going to make a judgement about whether original intent doesn’t apply or is unknowable, and what may seem to be unknowable to you may seem to be knowable to another judge, correct?”
“Senator Coburn,” Kagan replied, “I don’t disagree with you that judging requires judgment.”
Going into the hearings, I’d have bet that Kagan would follow Justice Sonia Sotomayor’s lead and pass over this sort of teachable moment in favor of assuring the Senate’s approval. If you recall, Sotomayor fell back on simplistic bromides in similar circumstances, thus reinforcing the conservative rhetoric that dominates the public’s understanding of a judge’s role.
Kagan, however, rose to the challenge by giving a coherent description of liberal judicial philosophy. She didn’t disparage originalism, the leading conservative theory, which basically says the Constitution has a permanent and knowable meaning that a judge reasonably and modestly applies to the case at hand. Sometimes the original meaning controls a case’s outcome, she conceded. Yet other times it does not. “Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court,” Kagan said. She described a pragmatic, non-ideological approach that’s constrained by statutes and precedent, such that rulings are always governed by “law all the way down.”
Nor did Kagan abandon the notion that empathy — a factor suggested by President Obama that’s since been widely derided — plays into a judge’s reasoning. Seeing the case through the eyes of the parties involved is not optional, it’s required. “But at the end of the day,” she emphasized, “what the judge does is to apply the law.”
It’s fair to say Kagan’s description of her judicial philosophy was a solid response to the bipartisan call for real, substantive answers. That’s not to say she didn’t do her share of dipping and dodging, arguably violating standards set out in her much-ballyhooed law review article that bemoaned the vapidity of confirmation hearings. She also refused to play ball with Democrats who sought to portray the Court’s conservative justices as corporation-worshipping extremists, particularly during her combative exchanges with Sens. Russ Feingold and Arlen Specter, with the latter growing increasingly crotchety as he tried, and failed, to pin Kagan down on a specific critique.
Nevertheless, she did Democrats a favor by articulating a salable, reasonable explanation of how liberal judges view the law, an explanation resistant to charges that it’s just a pretext for judicial activism. Given that Obama has nearly 100 empty seats on the federal bench left to fill, Kagan’s description of judging by “law all the way down” could be used by nominees who will shape the future of the courts for years to come. Moreover, she did so without putting her own nomination in peril.