Litigation

Day 3: Kagan Sidesteps Criticizing Court

By Peter Hardin

As her third day of testimony neared an end, Supreme Court nominee Elena Kagan sidestepped opportunities to criticize the current court and cautiously fielded questions about likening a justice to an umpire.

Democratic senators on the Senate Judiciary Committee “opened a broad attack” on the  court under Chief Justice John Roberts Jr. and challenged its “motives and legal integrity,” according to a Wall Street Journal article.

Rather than follow tradition by generally ruling on cases unanimously or with strong majorities, the Roberts Court overturns precedent regularly, voting 5-4 with a majority made up of Republican-picked justices, Sen. Sheldon Whitehouse, D-R.I., told Kagan. Some judges may have a mission and “are selectively knocking out precedent that does not coincide with their ideological views,” Whitehouse said.

The U.S. solicitor general and former Harvard Law School dean did not signal agreement.

“I’m sure everybody up there is acting in good faith,” the Washington Post quoted Kagan as saying. “You wouldn’t want the judicial process to become in any way a bargaining process or a log-rolling process.”

She also told Whitehouse, “Every judge has to do what he or she thinks the law requires,” according to a USA Today article.  “But on the other hand,” she said, “there’s no question that the court is served best and our country is served best when people trust the court as an entirely non-political body.”

During a break in her testimony, Sen. Patrick Leahy, the Judiciary Committee chairman, predicted to reporters her confirmation, the Associated Press reported. On Thursday, the hearings will be suspended for hours as the late Sen. Robert Byrd, D-West Virginia, lies in state in the Capitol.

In response to other questioning, Kagan said she agrees in part with an analogy used by Justice Roberts at his confirmation hearing to liken a justice’s duties to those of an umpire. But she also “gently criticized” Justice Roberts’ assertion, according to an account in Politico. Kagan told Sen. Amy Klobuchar, D-Minnesota:

?The metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it, that it’s easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that’s not right.

?It’s especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.?

There is perspective required, Kagan said:

?Judges do, in many of these cases, have to exercise judgment. They’re not easy calls. That doesn’t mean that they’re doing anything other than applying law.

?But we do know that not every case is decided 9-0, and that’s not because anybody’s acting in bad faith. It’s because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law ? law does require a kind of judgment, a kind of wisdom.?

Full post as published by The Gavel on June 30, 2010 (boomark / email).