* Specter Attacks Kagan for Vapidity: Sam Stein on Huffington, and Commentary from Me
Specter Gets Frustrated With Kagan: These Hearings Haven’t Been Substantive
Sam Stein
Huffington Post, June 30, 2010
The third day of Elena Kagan’s confirmation hearings may have demonstrated that there are limits to her charm offensive, as Sen. Arlen Specter (D-Penn.) went to notable lengths to chastise the Supreme Court nominee for, as he put it, avoiding “substantive discussion.”
The Pennsylvania Democrat, in what seems likely to be the last Supreme Court confirmation hearing of his Senate career, reached a point of clear frustration on Wednesday with Kagan’s unwillingness to engage in detailed legal conversation.
“Well, Solicitor General Kagan, I think the commentaries in the media are accurate. We started off with a standard that you articulated at the University of Chicago Law School about substantive discussions,” Specter said. “And they say we haven’t had them here, and I’m inclined to agree with them. The question is where we go from here. You have followed the pattern, which has been in vogue since [Robert] Bork. And you quoted me in your law review article that someday the Senate would stand up on its hind legs. it would be my hope that we could find some place between voting no and having some sort of substantive answers. But I don’t know that it would be useful to pursue these questions any further. But I think we are searching for a way how senators can succeed in getting substantive answers, as you advocated in the Chicago Law Review short of voting no.”
Specter, who voted against the confirmation of Kagan to her current post of Solicitor General in part because she was not forthcoming in those hearings either, was not the only senator on the Judiciary Committee to complain that she was ducking questions. But he certainly complained louder than others.
Kagan, as he noted, had written at some length about the need to add meaningful exchanges to usually vapid Supreme Court confirmation hearings. Now that she is the one being grilled, her position has changed either out of expedience or because, as she claims, there are risks to having a potential justice weigh in on cases she may hear on the court.
Story continues belowSpecter, as he himself noted, is partially to blame for this phenomenon. His vote against Bork helped derail that nomination. And ever since then Supreme Court nominees have studiously avoided offering unvarnished viewpoints during the hearings — and they have yet to be punished for it.
*****************
Commentary from me:
First, what we have here is Specter taking revenge on the Democratic Party for rejecting him in the recent primary. He could keep quiet, certainly, but he’d rather make trouble. “To hell with the Democrats. I’ll show them there’s a price to pay for dissing me.”
Second, there is a problem more fundamental than the nominee’s vapidity. We need to ask WHY every nominee since Bork has been evasive. It’s because the way the politics work even a somewhat moderate justice of a liberal sort cannot freely speak lest she expose herself to savage attack. The asymmetry with the Republicans is this: Whereas the people like Roberts and Alito pretended to be moderates when they were actually very far to the right, on the left even the actual moderates need to hide their liberal values and legal principles. So the right-wingers like Roberts say things they don’t believe in –balls and strikes– to hide his wolf in sheep’s clothing jurisprudence, while the liberals like Kagan speak vapidly.
In our time, a fairly conservative judge can speak about his principles, but an equally liberal judge is best to be vapid and platitudinous.
July 1st, 2010 at 11:58 am
Has anyone on the panel said anything about her actual record as Solicitor General?
July 1st, 2010 at 12:35 pm
Seems to me the problem with nominees of a ‘liberal’ bent today
is they dare not even suggest their intention to flex the constitution rather than simply ‘measure’ issues against the law of the constitution which, again, is the original intent of having a Supreme Court in the first place.
If either Senator from my state should vote for confirmation of this highly UNqualified person (very unlikely) I will contribute all I can to his next opponent and certainly vote against him as unfit himself.
July 1st, 2010 at 12:43 pm
It sounds, David R., as if you have not yet been disabused of the illusion that “flexing” the Constitution is a particularly liberal bent. How you can continue to think in this way in the wake of the Citizens United decisions is beyond me.
But secondarily, there is a paradox at the heart of originalism (as it is proclaimed, if not practiced, by the likes of Antonin Scalia): The intent of the Founders, it can be persuasively shown, was that their successors treat the constitution as a living document, not as a fixed and rigid set of meanings. So what is originalism: 1) to cleave to what the Framers themselves envisioned in their circumstances when they framed the words, or 2) to follow their apparent intent, which is that the meanings evolve with evolving circumstances and understandings of the underlying principles?
July 1st, 2010 at 1:43 pm
I know the said ‘conservative’ judges have done a bad.
The problem in recent years is that the liberal judges have rendered decisions violating the societal instincts of American citizens as a whole
where,(in cases, an amendment would certainly NOT be ratified.
It is this contempt for societal social values that is anathema
where, sad to say, the human greed of some conservatives is universal
as welll as also the belief in the power of money . . albeit much protested.l
July 1st, 2010 at 2:26 pm
One question for you, David R. Let’s take the case of Lawrence v. Texas where the Supreme Court decided that those laws were unconstitutional under which homosexuals could be prosecuted for conduct in private between consenting adults. I imagine that this is one of those decisions that you abhor, right (even if the Court that decided it was not made up mostly of liberals)?
You decry decisions that violate “the societal instincts of American citizens as a whole.” Now, if some trustworthy poll of the American public, as a whole, revealed that a majority of people supported that decision, would that change your mind about that decision? (Or about any of the other decisions you don’t like.)
Or is it your position that there are certain “societal instincts” –presumably those enshrined in tradition, and bolstered by religion– that are wrong to violate, whereas others that might be shared by a majority of the citizenry should not be given such privileged and protected status?
July 1st, 2010 at 6:56 pm
“Societal instincts” included at one time: an acceptance of slavery and the disenfranchisement of all but white male land-owners. As we have grown as a people by our wider inclusiveness, so have we grown by expanding our laws – and our Constitution – by changing them and it as well. Even as biological evolution works through changes in stable-but-changeable DNA, so must our “Constitutional DNA” change from time to time to adapt to new circumstances.
July 1st, 2010 at 7:02 pm
As far as the U S Constitution is relevant in our public affairs
I would say that if society changes to the point that and amendment
can be duly passed and ratified by the required number of states
that becones constitutional regardless of whether I or anyone else approves the change.
Otherwise, as I say, I can’t see some character in a black dress, accountable to no one, inventing new meanings for constitutional law for all the rest of America. Borders on bizarre and has created such division in the nation that we are now pawns of money and media. Yes or No ?!
(whether characterised as liberal OR conservative)
July 1st, 2010 at 7:57 pm
You seem to be operating under the supposition that the “meaning” of the Constitution is, and is supposed to be, clear and fixed. So if the Constitution calls for all citizens to be given “equal protection under the law,” you apparently think the meaning is clear, and should not continue to be interpreted.
The framers of that clause –in the 14th amendment– apparently did not think it meant that black people had to have access to all the facilities available to whites. So at least I understand. So the decision in 1896 in Plessy v. Ferguson –that ratified “separate but equal” and kept blacks in a terribly UNequal position for another more than half century– may have been consistent with what the Framers had in mind (which is more than you can say for the consideration of corporations, using that same clause, as “persons”).
But if the PRINCIPLE of “equal protection under the law” is considered an important idea, whose implications can go beyond what the people who framed it were thinking in the immediate aftermath of the Civil War, then perhaps it IS an important part of the constitutional process for people to continue to think about what it means to give people “equal protection,” and what it means to provide defendants “due process.”
The Constitution provides that defendants have “a right to counsel.” What does that mean? What in particular does it mean when it comes to a defendant who cannot afford to HIRE counsel for himself. Should the Constitution be taken to mean that defendants “have a right to counsel if they’ve got the money,” or should it mean “everyone being tried on a serious criminal charge has a right to be defended in court by an attorney, even if the defendant is too poor and needs the court to appoint an attorney for them.”
It wasn’t until the early 1960s that the Court decided that the latter was more in accord with the PRINCIPLE of a “right to counsel.” The Framers hadn’t thought the issue through that far– they were just trying to avoid the kind of star chamber injustices they’d witnessed in Europe. Do you think, David R., that it should have been necessary to pass a constitutional amendment to provide that a defendant should not be tried for a serious crime without having someone who knows how the system works there to uphold his end of the case?
Do you think it should have required a constitutional amendment before the Court could find, as it did in Brown v. Board, that “separate but equal” was inherently unequal, and therefore contravened the “equal protection” clause?
And is it inventing a new meaning of equal protection if the Court decides that all couples of consenting adults are entitled to the same protection against having the police break down the door to their bedroom and hauling them off for committing some “crime” entailing sexual behavior between consenting adults?
I agree with you that the judges cannot simply be free to just make things up from whole cloth. There should definitely be inhibitions and restraints on the development of the meanings of the Constitution.
But the Constitution is inherently made up of PRINCIPLES –many of them intentionally unspecific– whose implications must inevitably unfold over time. When the Declaration of Independence declared that “all men are created equal,” Jefferson and the other signatories had not yet thought through its implications to see that this was a profound condemnation of the institution of chattel slavery. (Chattel slavery’s continuation was written into the Constitution itself.) But the implication emerged over time, and that Jeffersonian phrase, “all men are created equal,” was later –four score and seven years after the words were written– picked up by Abraham Lincoln and made to serve that very purpose.
Ideas ALWAYS have implications beyond what those who put them forward can fully envision. That is especially true of ideas being used for the purpose of making major change, as was the case of our Constitution.
So meanings keep unfolding.
It would be easier if we could simply say, like the simplistic originalists do, that what we’re supposed to do is just apply what’s written. Just call balls and strikes. But that’s apparently not what the Framers themselves intended. And it’s not how the Constitution works best.
It would also be easier, not better, if we could say that the Constitution means whatever five judges want to declare that it says. THen we wouldn’t have to worry about the text or the intent or, indeed, about the Constitution. Dangerous.
Rather than having to choose between having to live in a constitutional strait-jacket, which cripples us, and having to live without any real limits being imposed on the Court by the meaning of the Constitution, which is dangerous, we are instead challenged to navigate the best integration of the two that we can achieve.
Not a neat solution– combining responsibility to the Constitution with a sense that the principles in it need always to be informed by new circumstances, new standards, and the more complete working out of their ramifications. Not simple or easy, but such navigation is the task we as a nation are challenged to perform.
July 1st, 2010 at 9:02 pm
I don’t see it happening. The current nominee has no judicial record that I have heard. has had no husband (?) no childen(?) and in what way
has she involved with the life of the general population as even Sotomayor
professed. From what point of view do you think she COULD approach this business of living constitution. If the current purpose was to have a truly constitutional judge with wisdom of experience in life
Would it not make sense to look for someone already on the Federal Bench
or even a State Supreme Court judge or a judge of demonstrated judicial instincts elsewhere.
No. This appears to be a nominee who has appeared without such credentials . . and for Why ?
No Andy, sophist ‘reasonong’ may persuade some people . . possibly those affected by ‘education’ but I have to say I see rather dreamy mental processes at work in your ‘comment’.
As far as this business of all men created equal
how could that be relevant among those who hold that mankind was NOT EVEN CREATED. Besides, created or not (for discussion) all men certainly are not equal !
As an attempt to clarlify this often misinterpreted ‘all men created equal’ business
I think the issue was rejecting the rule of professed Royalty claiming to rule by Divine Right.
Jefferson was asserting that there is no such thing; THAT’S ALL
More dreamy ‘thinking’ been going on quite a while.
July 1st, 2010 at 10:44 pm
I agree with Specter, sad to say. I listen to the radio while I work, and it was two days of total, insipid and uninformative banality. The position she’s up for is an important one and the people have a right to know more about the candidate’s intentions than that they are able to blat conventional wisdom and pro forma asseverations of a ridiculously unrealistic and adamantine dedication to plodding,passionless robotic deliberation.
Its even sadder than agreeing with Specter to say she did the right thing. Vetting appointees is not much more than free range witch hunting any more. If she didn’t swear on a stack of bibles that she’d never think or feel like a human being while on duty she’d never get the job.
Here, and in many other situations, we’re now forced to populate our core government with pigs in pokes instead of carefully considered public servants. We’re damned if they do, and we’re damned if they don’t.