Past, Present and Future Justice

Brendan Smialowski/Getty Images Elena Kagan at her Senate confirmation hearings.

Everyone will have a favorite moment from Elena Kagan’s Supreme Court confirmation hearing: the nominee’s crack about spending Christmas Day in a Chinese restaurant, for example, or Senator Tom Coburn’s too-clever-by-half effort to draw out her views on the constitutionality of the health-care mandate by asking whether Congress could require every American “to eat three vegetables and three fruits every day.” (Of course Solicitor General Kagan knew what the Oklahoma Republican was driving at, but she wasn’t about to play. “It sounds like a dumb law,” she replied.)

My own favorite came during Senator Charles Grassley’s opening round of questions on Tuesday afternoon. He quoted back to Ms. Kagan from an interview she gave to a magazine in 2004 which she had made the daring observation that “the attitude and views that a person brings to the bench make a difference.” So what were her attitudes and views, and how would they make a difference, the Iowa Republican wanted to know.

Was this, so deliciously early in the proceedings, the gotcha moment in which the former dean of Harvard Law School would have to reveal her inner wise Latina?

Not exactly. All she meant was that “different justices approach constitutional interpretation differently, approach statutory interpretation differently,” the nominee explained earnestly. She herself had no “grand theory,” she said, adding that she believed in looking at a mix of text, history, tradition, precedent and underlying principles.

“The attitudes and view that you have, how will they make a difference in how you will reach a decision?” the senator persisted.

In reply, Ms. Kagan offered that the approach she had just described “might be different than some other people’s. Some people have that approach. Some people have a different approach. And those differences do matter.”

Senator Grassley decided that it was time to move on to the next item on his checklist. “Okay, I’d like to go to the Second Amendment,” he said.

Aside from demonstrating Elena Kagan’s facility at avoiding obvious hazards, this colloquy also illustrates a basic dynamic of Supreme Court confirmation hearings: the inability of most senators – there are exceptions – to sustain a line of questioning once their talking points run out. If nominees stick to their own story (or non-story) most senators will eventually have to give up. Ms. Kagan’s reference to text, history, precedent and principle actually offered a fair amount of substance to explore, but only by a senator prepared to hold those concepts up to the light and shake them a bit to see what they contain.

Many have already remarked on Ms. Kagan’s disavowal of her 1995 article that criticized the confirmation process in pithy terms and urged nominees to be more forthcoming about their views. I have already cheered the sentiment that the article expressed. Now that I’ve watched several Republican senators use the legacy of Justice Thurgood Marshall, for whom Ms. Kagan clerked, as a piñata – to say nothing of Senator Jeff Sessions’ interminable effort to reignite the culture wars by picking over the dry bones of the military recruiting controversy – I’ve gained sympathy for the strategy that counsels nominees to say as little as possible and just get the thing over with. And I give Ms. Kagan points for taking several opportunities to observe that judging is not a robotic exercise but one that actually requires judgment.

Still, I’m left with the feeling that a hearing like this represents a lost opportunity for the public to actually learn something about how judges think about what the Constitution means. Ms. Kagan declared early on that “it wouldn’t be appropriate for me to talk about what I think about past cases – you know, to grade cases – because those cases might again come before the court.” If any senator directly challenged that premise, I missed it. It deserves to be challenged, not only because it cuts off a fruitful line of questions, but because it isn’t logical.

Ms. Kagan’s concern, like that expressed by the many nominees before her who took the same position, evidently was that “grading” a past case would somehow compromise her ability to rule impartially when the next case based on the same legal principle reached the court. But how could that be? Justices who sit on one case are not disqualified by virtue of that fact from sitting on the next case that concerns the same legal principles. Justice Antonin Scalia’s repeated criticism of Roe v. Wade, including personal statements in opinions urging his colleagues to overrule it, does not disqualify him from sitting in future abortion cases. Justice Marshall’s strong objection to the Supreme Court’s death penalty jurisprudence – he believed the death penalty is unconstitutional under all circumstances – did not disqualify him from participating in the steady stream of death penalty cases that reached the court during his tenure.

My Yale Law School colleagues Robert Post and Reva Siegel published an article four years ago urging the Senate to question Supreme Court nominees on their views of past cases. The point would not be to extract promises of future behavior but to probe the nominees’ “present understanding of the law” and “force substantive constitutional differences into the open.” From a litigant’s point of view, “there is no pertinent difference” between being judged by a justice who wrote the authoritative opinion in an area of the law and “a new justice who has in a confirmation hearing recounted how he would have voted” in that case, the two law professors wrote. They added that “nominees who explain the grounds on which they would have voted in an already decided case do not prejudge future cases any more than do judges who write or join opinions in actual cases.”

Under those rules of the game, we presumably would have heard a different answer from the one Ms. Kagan gave to Senator Herb Kohl’s question of whether the Supreme Court should have involved itself in the 2000 election case that became Bush v. Gore. What she said was: “The question of when the court should get involved in election contests, in disputed elections, is, I think, one of some magnitude that might well come before the court again.” Perhaps feeling that there was more to say, she added helpfully, “It’s hard to think of a more important question, in a democratic system, and maybe a tougher one.”

Exactly.

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Ed Bailey/Associated Press Martin D. Ginsburg and Justice Ruth Bader Ginsburg.

I will conclude this column with a brief reflection on the passing of Martin D. Ginsburg, Justice Ruth Bader Ginsburg’s husband of 56 years, who died on Sunday at the age of 78. He was a man far ahead of his time as a partner in a marriage of equals. The obituaries stressed his sense of humor and his skill as a chef. He was also one of the country’s top tax lawyers. I’m sure he would have excelled in any area of the law, but he happened to be passionate about tax law.

He once mentioned that he planned to attend a Supreme Court argument in an obscure tax case in which I had absolutely no interest, and asked me if I would be there. “Marty,” I replied, “I wouldn’t go to that argument if it was the only case on the docket.” The expression on his face registered not only shock and disbelief but – I’m quite sure – wounded feelings to think that anyone could have so little regard for the Internal Revenue Code. He proceeded to explain the case to me in hugely entertaining detail. I’ve chuckled ever since whenever I hear the phrase “Subchapter S corporation.”

Marty Ginsburg was famously devoted to his wife and to her career, but it was not always easy. In a speech a few years ago, he recounted an incident that occurred in 1980, soon after Ruth Ginsburg took her seat on the federal appeals court in Washington:

“An important-looking fellow we did not know came up and, encouraged to ‘say hello to Judge Ginsburg,’ stuck out a manicured hand, turned to me, and said with much enthusiasm, ‘Oh, Judge Ginsburg, I’ve heard so much about you!’ I grasped his hand with the greatest warmth and responded, ‘Actually, she’s Judge Ginsburg, but I remain hopeful.’”