A lot has been discussed lately about Elena Kagan's points of view and whether or not she'll be a liberal justice. Of course, by "liberal" the left is asking that she simply decide things along ideological lines. Joshua Green writes today:
Within hours of Elena Kagan's nomination to the Supreme Court Monday, it was clear that her confirmation battle would -- at the outset, anyway -- represent a departure from President Obama's previous nominee, Sonia Sotomayor: Kagan will have to overcome skepticism from the left along with the expected skepticism from the right.
The same thing that makes her confirmation so likely -- the lack of a paper trail for opponents to parse and attack -- has also become a prime source of concern for her own side. There's little hard evidence to reassure liberals that she'll adjudicate in the way they would prefer. Kagan's lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she'll turn out to be more conservative than advertised.
Most Republicans privately consider Kagan an acceptable Democratic nominee, and have shown no appetite for a filibuster. The frustration has come mainly from the left. On Monday, the liberal group MoveOn.org asked Democratic senators to refrain from endorsing or praising Kagan too effusively in hopes of gaining leverage to force her to commit to positions absent from her record.
Now, I dislike Antonin Scalia as much as the next guy, and I have great admiration for Justice Brennan's opinions, but my understanding of what a judge should be did not include partisan. The purpose of a judge is to hear a case, consider the law, consider the Constitution (and yes, consider public policy and fairness) and make a ruling. Just because a judge is "conservative" doesn't mean they have to decide a case in favor of gun rights. Just because a judge is "liberal" doesn't mean they have to decide a case in favor of abortion rights. A wise and prudent (read: good) judge decides a case based on the facts and the law of the land.
What should really be asked about Elena Kagan is: does she have an expert understanding of traditional jurisprudence? is she willing to consider all the facts before making a decision? is she free of any ties or beliefs that would cloud her judgment? Judge Bork was not a bad nominee because he was conservative, it was because he called the 9th Amendment "an inkblot" on the face of the Constitution. That's the kind of failure to be fair and open-minded that a judge should not display. If you believe your position to be right, you should simply ask if a judge is competent. If you're right about your position, you'll get a ruling in your favor, if not, change the law (legislators are allowed to be partisan).
What should really be asked about Elena Kagan is: does she have an expert understanding of traditional jurisprudence? is she willing to consider all the facts before making a decision? is she free of any ties or beliefs that would cloud her judgment? Judge Bork was not a bad nominee because he was conservative, it was because he called the 9th Amendment "an inkblot" on the face of the Constitution. That's the kind of failure to be fair and open-minded that a judge should not display. If you believe your position to be right, you should simply ask if a judge is competent. If you're right about your position, you'll get a ruling in your favor, if not, change the law (legislators are allowed to be partisan).
No comments:
Post a Comment