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The Senate Debate on Elena Kagan Has Begun

Posted By Brian Darling On August 3, 2010 @ 12:45 pm In Legal | Comments Disabled

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The Senate today commenced debate on the nomination of Elena Kagan to serve a lifetime appointment on the U.S. Supreme Court.  The debate opened with Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee setting the tone for liberals in the Senate.  The debate expected to last until the end of the week.

Senator Leahy led off with the following statement:

More than 12 weeks ago, President Obama nominated Elena Kagan to succeed Justice John Paul Stevens as an Associate Justice of the Supreme Court of the United States.  Having heard from Solicitor General Kagan at her confirmation hearing five weeks ago, I believe the American people have a sense of her impressive knowledge of the law, her good humor, and her judicial philosophy.

Conservatives would agree with many those points, yet may come to the conclusion that she has disqualified herself by exhibiting extreme views over her lifetime of liberal activism.  Furthermore, Kagan has evidenced a strong likelihood of implementing a judicial philosophy inconsistent with a proper, originalist reading of the Constitution.

Leahy continued:

One need to look no further than the Lilly Ledbetter case to understand the impact of each Supreme Court case has on the lives and freedoms of countless Americans.  In the Ledbetter case, five justices of the Supreme Court struck a severe blow to the rights of working families across our country.  Congress enacted to protect women and others against discrimination in the workplace more than 40 years ago.  But we still struggle to ensure that all Americans – women and men – receive equal pay for equal work.  It took a new Congress, joined by our new President, to reverse the activist conservative majority in the Supreme Court by passing the Lilly Ledbetter Act, striking down the immunity the Supreme Court had given to employers who discriminated against their employees and successfully hid their wrongdoing in the Ledbetter case – and the Ledbetter case said, in a decision I still find shocking in this day and age, they could give a higher rate to men than women as long as they kept it hidden.

According to Andrew Grossman [2] of The Heritage Foundation in a Web Memo dated January 7, 2009, “the Court’s decision reflected both longstanding precedent and Congress’s intentions at the time the law was passed.”

Grossman further argued:

In a decision by Justice Samuel Alito, the Supreme Court held that the statute’s requirement that an EEOC charge be brought within 180 days of an “alleged unlawful employment practice” precluded Ledbetter’s suit, because her recent pay raises were not intentionally discriminatory.  Ledbetter argued that the continuing pay disparity had the effect of shifting intent from the initial discriminatory practice to later pay decisions, performed without bias or discriminatory motive. The Court, however, had rejected this reasoning in a string of prior decisions standing for the principle that a “new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.”  For those familiar with the law, this appeared to be a rehash of a 1977 case that reached the same conclusion on identical grounds.  Thus, the Court affirmed the lower decision against Ledbetter.

The activist position was the position of the liberal minority in the Ledbetter decision.  This was a case of statutory interpretation that seemed to follow the letter of the law.  Leahy uses an example of a case that was rightly decided considering the clear statutory language that the Court interpreted correctly.  This is evidence that Leahy’s philosophy is consistent with Kagan’s very liberal interpretation of the proper role of the Courts to second guess Congress when it suits their purposes.

Leahy also leveled the often repeated charge by liberal Senators that this current court is a conservative activist court:

All the talk about judicial modesty and judicial restraint for the nominees of a Republican President at their confirmation hearings, we have seen a Supreme Court in these last five years that has been anything but modest and restrained.  We’ve seen all too often in these last years the activist conservative members of the Supreme Court substituting their own judgment for those of the American people’s elected representative.

Robert Alt [3], of The Heritage Foundation, testified before the Senate Judiciary Committee and provided a strong response to Leahy’s charge that the Ledbetter decision, as well as other recent decisions of the Supreme Court, were evidence of conservative activism:

As these hearings opened, numerous members of this Committee lamented what was variously described as the judicial activism and pro-corporatism of the Roberts Court. Indeed, C-SPAN viewers could be excused if they mistakenly believed that they were watching Classic C-SPAN coverage of the confirmation hearings for John Roberts or Samuel Alito, given the references to those justices. Singled out for special condemnation by members of this Committee were the Roberts Court‘s decisions in Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co.  The complaints raised closely tracked those of liberal activists, who issued reports which both highlighted their grievances and served as talking points on these cases and the Roberts Court in anticipation of the hearings.  The story of a conservative, activist, pro-corporatist Roberts Court may sound compelling at first blush, particularly with its repetition and regrettable distortion of the cases involved, but it is just a story—and a fictional one at that. This story applies a flawed definition of judicial activism, a deliberately skewed sample of the business decisions of the Roberts Court, and misrepresentations of key decisions of the Roberts Court.

Alt explained that real judicial activism is when “judges write subjective policy preferences into their legal decisions rather that apply the Constitution according to its original meaning or statutory law based on its plain text.”  Kagan and Leahy subscribe to a judicial philosophy where policy preferences will carry the day and results oriented decision making is the preferred road for justices on the Courts.


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2010/08/03/the-senate-debate-on-elena-kagan-has-begun/

URLs in this post:

[1] Image: http://www.foundry.org/wp-content/uploads/kaganSC.jpg

[2] Andrew Grossman: http://www.heritage.org/Research/Reports/2009/01/The-Ledbetter-Act-Sacrificing-Justice-for-Fair-Pay

[3] Robert Alt: http://judiciary.senate.gov/pdf/10-07-01AltsTestimony.pdf

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