Elena Kagan and Originalism
The Cato Institute's Ilya Shapiro has a great rundown of today's confirmation hearings for Supreme Court nominee Elena Kagan. Some highlights:
In her response to Senator Kohl about whether she's an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the "original intent" of the Founders. This line of analysis is completely wrong. It's not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case. So it seems that Kagan either doesn't understand originalism or doesn't take it seriously. Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution. I take this to mean that when originalism suits Kagan's desired result, she will pay it lip service. Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position….
The more I watch Elena Kagan, the more I'm liking her personally and the more I'm concerned about what she'd be like on the bench.
Reason weighs in on Kagan here.
