Kagan gets it right

So, you’ve heard my complain before about Chief Justice John Robert’s highly misleading reference to a SC Justice as an umpire simply calling balls and strikes that largely won over a woefully naive press corps.  How nice, then, to see Elena Kagan take this on during her own testimony, as detailed in EJ Dionne’s fine column on the matter:

On the matter of judges as umpires, Kagan could have ducked and let the pitch sail past her. She didn’t. The umpire metaphor, she said, has “its limits” because it wrongly suggests that judging “is a kind of robotic enterprise” and that “everything is clear-cut.” Sounding rather like retired justice David Souter in his recent Harvard commencement address, Kagan said, correctly, that in the hard cases “there are frequently clashes of constitutional values.” That’s why “not every case is decided 9-0.”

Indeed, the umpire metaphor is dangerously and maybe even intentionally misleading. It implies that the answer a particular Supreme Court majority comes up with is the one and only possible answer to a difficult question. If this were true, we would not be having the very political struggle over the court that was so evident during these hearings.

Also, a nice little bit on the absurd conservative complaints of judicial activism (as you probably know, it is the conservatives who are so happy to overturn laws they don’t like):

Thus did Sen. Tom Coburn ask her whether she would rule against a law requiring Americans to eat a certain number of fruits and vegetables.

“Sounds like a dumb law,” Kagan replied, and then she spoke admiringly of Justice Oliver Wendell Holmes who “hated a lot of the legislation that was being enacted” in the early years of the 20th century “but insisted that if the people wanted it, it was their right to go hang themselves.”

“Judges,” Kagan declared, “should realize that they’re not the most important people in our democratic system of government.” It’s a line that might usefully be engraved on a wall of the Supreme Court building.

Yes, Republicans seemed to be admitting implicitly, it is conservatives who are now the judicial activists. That’s why they moved on during last week’s hearings to a new attack line against liberal jurists as being “results-oriented.”

I did not really follow the hearings all that closely, but I’m certainly impressed by these bits from Kagan.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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