Kagan Mum on Recent Rulings

By Kenneth Jost
Supreme Court Editor, CQ Press
      Junior Democrats on the Senate Judiciary Committee used their questioning of Supreme Court nominee Elena Kagan on Wednesday [June 30] to highlight criticisms of the Roberts Court for closely-divided, precedent-breaking rulings, but Kagan continued to steer clear of substantive comments on recent cases.
      Rhode Island’s Sheldon Whitehouse opened the second day of questions for Kagan by pointing critically to the Roberts Court’s 5-4 votes in Citizens United campaign-finance decisions and two pro-Second Amendment decisions. He said the rulings were driven by what he called "the group of five" Republican appointees and contrasted the close divisions with the court’s unanimous vote a half-century ago in the Brown v. Board of Education school desegregation decision.
      “What efforts should be made to return to a collegial environment at the court?” Whitehouse asked. Instead of deciding cases by “the slenderest majority,” Whitehouse said, would it be better “to try to reach across the partisan divide at the court . . . , to reach their decisions a little more broadly for the sake of the law and the country?”
      In her reply, Kagan echoed Whitehouse’s endorsement of consensus as a goal, but she also steered clear of even a suggestion of criticism of the justices that she hopes to join as a colleague after Senate confirmation. “You wouldn’t want the judicial process to become in any way a bargaining process,” Kagan said.
      “Every judge has to do what he or she thinks the law requires,” Kagan continued. “But on the other hand there’s no question that the court is served best and the country is served best when people trust the court as an entirely nonpolitical body.”
      Whitehouse persisted by noting passages in the Citizens United decision that, in contradiction to Congress, found that corporate spending on political campaigns did not pose a threat of corruption or appearance of corruption. “Anybody who’s ever been near an election,” Whitehouse said, would see the court’s finding as “wrong.”
      Without accepting Whitehouse’s premise, Kagan did pledge deference to Congress in future cases. “I do think that congressional fact-finding is very important,” she said, “and that courts should defer to it.”
      Whitehouse’s line of questions was picked up by two other Democrats in the morning session: Delaware’s Ted Kauffman and Minnesota’s Al Franken. Kauffman pointed to a 2007 decision, overturning a 1911 precedent, to ease antitrust law. Franken complained of a Rehnquist Court decision in 2001 upholding mandatory arbitration clauses in employment contracts that he said the Roberts Court had expanded by a 5-4 vote last week (Jackson v. Rent-A-Center, West).
      Democrats had signaled in advance of the hearing that they would use Kagan’s appearance to focus on what they see as the Roberts Court’s activist, pro-business rulings. Outside the hearing room, Sen. Jon Kyl, R-Ariz., called the line of questioning “silly.” “I think we should focus more on the nominee,” Kyl said, “and find out what we can about her judging.”
      For their part, Republicans were focusing critically on Kagan’s answer on Tuesday endorsing a broad view of congressional power under the Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce. In opening the subject on Tuesday, Oklahoma’s Tom Coburn was evidently interested in use of the Commerce Clause as part of the basis for the health insurance mandate included in President Obama’s health care plan as passed by Congress with virtually no Republican support.
      In comments Wednesday, Coburn said he took Kagan’s answer to be a sign that she would vote to uphold the health care plan, which some states are challenging as unconstitutional in federal court. “Anything the federal government tells us to do they can tell us,” Coburn said. In the hearing room itself, Utah’s Orrin Hatch called the Commerce Clause “the last refuge of a big-government scoundrel.”
      Kagan continued to steer clear of disclosing personal views or of what she described Tuesday as “grading” Supreme Court decisions. But she did venture a partial criticism of the famous baseball umpire metaphor that Chief Justice John G. Roberts Jr. used in his confirmation hearing in 2005 to illustrate his view of judicial restraint.
      The metaphor “has its limits,” Kagan said, because it suggests that law “is a kind of robotic enterprise . . . that there’s no judgment in the process.” She continued: “I do think that’s not right, and it’s especially not right at the Supreme Court level.”
      The committee continued questioning past noon even as senators went to the Senate floor to vote on confirmation of Gen. David Petraeus to be commander of the joint U.S.-NATO forces in Afghanistan. Kagan was to face additional questioning after a lunch break.