The Kagan Deception

Gary Marx Contributor
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The Senate Judiciary Committee just completed its second day of hearings on the nomination of Elena Kagan to replace Justice John Paul Stevens on the Supreme Court.  So far, Ms. Kagan has shifted from posing as a clone of John Roberts to evading or obfuscating in order to avoid making any statement that could cost her Senate votes.

She rejected President Obama’s “empathy” standard, pretended that she did not know what it means to be a legal progressive, and continued to deflect criticism from her work for President Clinton and Justice Marshall by saying that she was merely channeling them.  Most importantly, she was completely disingenuous when asked whether she agreed with Justice Scalia’s approach to the law, commonly known as “originalism,” or Justice Souter’s, which believes the Constitution should evolve to meet evolving societal standards. According to Kagan, “I don’t really think that this is an either/or choice. I think that there are some circumstances in which looking to the original intent is the determinative thing in a case and other circumstances in which it is likely not to be.”

For someone who previously said that these confirmation hearings had taken on the air of vacuity and farce, Kagan sure seems willing to put on an act.

But what she has revealed is worth noting.

As with Justice Sotomayor, who was confirmed just a year ago, Kagan has done her best to impersonate John Roberts by mouthing lines about loyalty to the rule of law, impartiality, and assorted other conservative one-liners.  As the AP summed up her opening statement, “She billed herself as a consensus-builder for the ideologically polarized court and said she’d strive to emulate retiring Justice John Paul Stevens — the man she’s been chosen to succeed — by ‘listening to each party with a mind as open as his … to render impartial justice.’”

But it’s difficult to understand how one could be loyal to the rule of law and render impartial justice and also emulate Justice Stevens.

Does the “rule of law and impartial justice” mean that Kagan will agree with Justice Stevens’s decision in Grutter v. Bollinger (2003), that a university can use racial preferences in admissions?  Or Kelo v. New London (2005), that the Constitution allows a government to take land from one private person and transfer to another to further economic development?  How about gun rights and the cases of D.C. v. Heller (2008) or McDonald v. Chicago (2010)?  Would a Justice Kagan agree with Justice Stevens that the Second Amendment does not protect an individual right to own a firearm?

Justice Stevens was one of the most activist Justices in memory.  If Kagan intends to emulate him, she cannot be serious about her desire to be loyal to the law and original meaning of the Constitution.