Ever since Chief Justice John Roberts compared judges to umpires in his confirmation hearings five years ago, nominees have felt pressure to affirm their commitment to impartial, fair readings of the law.
In her opening statement, Ms. Kagan affirmed:
"I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat."
Responding to GOP charges that she would use the Supreme Court to advance her left-leaning politics, Ms. Kagan responded: "My politics would be, must be, have to be, completely separate from my judgment."
Her statement was meant to be reassuring, but is it really possible – or even desirable – to expect Supreme Court justices to keep their political convictions “completely separate” from their judgment?
In his commencement address at Harvard last month, former Supreme Court Justice David Souter made an impassioned argument against the notion that rendering constitutional judgment could be reduced to a mechanical, “fair reading” of the text:
The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.
So how are judges supposed to “choose between the good things”? If we define “meaning” by reference to our core political principles, aren’t Kagan’s political beliefs integral to her judgment in the “hard cases”? Why, then, should she keep them completely separate?
That’s a line of inquiry I’m hoping at least one senator pursues this week.