Legal Commentary

Some themes and thoughts that jumped out at me from Day Two, the first substantive day, of the Kagan Hearings, where criticism of Justice Marshall gave way to important considerations of Jews eating Chinese food on Christmas.

1) Sen. Grassley is interested in law school curriculum reform. He pressed Kagan on why Harvard requires International Law as a 1L class, but not Con Law; after all, isn't Con Law so much more fundamental to our system than International Law? The subtext was that Kagan (who, of course, did not unilaterally impose the curriculum) believes international law is more important than our Constitution--or worse, should be a part of our Constitution (Kagan actually handled the look-to-foreign-law issue very well and with some substance). But the phrasing bordered on an accusation of lack of patriotism--you have more love/respect for the law of other countries than our own beloved (and perfect) Constitution.

Kagan gave what I thought was an interesting answer, explaining: 1) We require Legislation/Regulation course (that is part Con Law) that gives 1Ls the background about the structure of the legal and governmental systems; 2) Con Law is so complex that students are better able to grasp it as 2Ls and 3Ls (not an untrue statement, although probably true of just about everything in the curriculum); and 3) It is important for students to learn this because more students are going to do international litigation or international business transactions in their careers than are going to litigate commerce clause issues. Grassley's response was to repeat his point of "Isn't Con Law fundamental to our system and shouldn't something so fundamental be a part of the 1L curriculum?" Maybe next round she can explain that there are only so many hours in the 1L year.

2) "I would need to research that more" is this year's "I can't decide in the abstract" and "I can't opine on an issue that might come before the Court" (although we have heard some of the latter). This highlights that justices are not walking constitutional law experts who can answer every minute question off the cuff; answers to specific questions require thought and research.

3) Republicans have asked her for her "personal views" on particular cases, trying to get her off the "It is precedent entitled to respect" meme. They are saying, in essence, "Yes, it is entitled to respect, but what does Elena Kagan personally believe on this?" But, of course, since judges are not supposed to let their "personal views" influence them, why should it matter what she personally believes? You cannot have it both ways.

4) In response to another empathy question from Sen. Kyl, Kagan said: "I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other."

I will have more to say on the empathy thing in a later post. For now, I will say that I liked this answer because it re-introduces us to the adversary system and the role of parties and lawyers in the process of making law and deciding cases. Judges do not undertake a free-standing examination of the legal and factual issues (unlike those judges in other countries, who we certainly don't want to emulate). Rather, they at least start with the arguments presented to them by parties working in an adversary system. The judge figures out the law (which Kagan several times points out often is hard to determine) in part by weighing and balancing the parties' arguments against one another.

Adversariness and lawyering get completely overlooked in the balls-and-strikes vision of judging. The law simply is. The quality of lawyering (or even the fact that lawyering occurs) is irrelevant (which explains the outcome and some of Chief Justice Roberts' questions in this term's attorney fees case). Not a major talking point, but Kagan came back several times to parties and lawyers and the role they play.

5) Am I the only one who senses that this hearing is an order of magnitude better than a year ago? (No: Brandon Bartels agrees). This may be that Kagan seems to be having a ball up there and her personality and intelligence are shining through. Her answers seem more nuanced and a bit more honest and forthcoming at points. Kagan even rejected, explicitly, the idea of "robotic" or "automatic" judging and emphasized that many cases are difficult to determine what the law is, although she always immediately fell back to "judges-apply-the-law" oversimplification in the next sentence. there are cases in which it is difficult to determine what the law requires. True, she has not put forth the full-throated liberal constitutional vision that some (particularly on the Left) would like to hear. And she is no more forthcoming than her predecessors on substantive analysis of issues.

But she presents an almost-realistic picture of what law and judging really are all about, even if couched somewhat for political reasons. Maybe that is as much as we can hope for right now.