Supreme Court

Justice Kagan Laments Partisan Confirmation Conflict

Political conflict over judicial confirmations may be harmful for the courts.

|The Volokh Conspiracy |

Speaking to a group of University of Chicago students on Wednesday, Justice Elena Kagan lamented the partisan conflict that has consumed contemporary judicial confirmations.

From a CNN report:

"There is so much tit-for-tat for tit-for-tat that goes on in these processes," Kagan said at an event with University of Chicago interns at the court on Wednesday. "Everybody has their list of times that they've been wronged. The Republicans have their list and the Democrats have their list."

"It's an unfortunate thing. Because it makes the world think we are sort of junior varsity politicians. I think that's not the way we think of ourselves, even given the fact that we disagree," Kagan said. . . .

"There have certainly been periods where the expectation has been that if you have a certain set of qualifications and if you looked like you were going to be a responsible judge, even if somebody thinks that there is going to be some set of rulings which they'll disagree with, the expectation was, nonetheless the President was entitled to his Supreme Court pick," Kagan said.

"These votes make it seem that we're an extension of the political process," she added. "Long-term I think that's very unhealthy for the court."

Audio of the remarks is available on YouTube.

Advertisement

NEXT: Jim Jordan Says He's Running for Speaker of the House

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “These votes make it seem that we’re an extension of the political process”

    Which votes, the Senate votes or the Court’s own votes?

    We’ve passed the point when we can artificially separate “qualifications” from how a judge votes.

    If a judge punches his ticket with a Yale degree, clerkships, private or government service, lower-court judgeship, etc., but is inclined to rewrite laws at his whim, he isn’t qualified. A graduate of a state law school, who is inclined to apply the laws as they are and not as he wants them to be, while applying the good old American presumption in favor of life and liberty in cases of vagueness, would be better qualified.

    1. Senate voting process, I believe.

      I think that’s why she also included ‘responsible’ as a characteristic.

      1. I know the Justice was focusing on the Senate, but let’s look at the voting patterns in the Court itself. No side is pure, but Kagan’s side seems particularly focused on using its judicial power to make over the law into what her side of the cultural divide thinks the law ought to be. Her reference to “even if somebody thinks that there is going to be some set of rulings which they’ll disagree with” seems to suggest that a “responsible” judge can give activist votes – such as the votes Kagan participated in – without the Senate getting all uptight about it.

        1. No side is pure, but Kagan’s side seems particularly focused on using its judicial power to make over the law into what her side of the cultural divide thinks the law ought to be.

          No side is pure, but Alito’s side seems particularly focused on using its judicial power to make over the law into what his side of the cultural divide thinks the law ought to be.

          1. Wrong.

            The equivalent would be a 5-4 decision (using say the 9th and 14th Amendments) claiming the constitution protects the right to life of fetuses.

            Even leftists know that their right-wing counterparts endeavor to stick to their principles (however imperfectly.)

            1. Why isn’t a case like Shelby County v. Holder or Janus or Hobby Lobby an equivalent? Or Bush v. Gore?

              1. Shelby County v. Holder is an equivalent. The Constitution requires that any remedial 15th Amendment legislation be “appropriate.” A 50 year old formula is not “appropriate” simply because there is no political will to pass a new one.

                1. But that’s not the basis of the decision. Rather, the majority held that the states were entitled to “equal dignity”. Which is made up and isn’t found in the Constitution.

                  1. But it is. A prophylactic remedial measure cannot treat states differently unless there’s reason to do so. A formula based on fifty-year old data with respect to voter suppression is not “appropriate.” For example, the Bronx, Brooklyn and Manhattan were “covered” jurisdictions, and Queens was not. Does that make any sense to you?

              2. Shelby County v. Holder is not equivalent as it simply requires actual harm to be shown (this decision is so un-radical and common sensical that the uproar seems pure race-baiting and nothing else)

                Janus and Hobby Lobby are based on the actual language of the constitution (free speech/association and religious practice) are actually mentioned in the text!!!!!

                Bush v Gore is such a mess, but if Al didn’t try to steal the election it would not have been necessary (it was decided correctly IMO.) I bought the equal-protection argument, but I am well out of the mainstream so YRMV.

                “Living” constitutionalist create “rights” out of thin air — a rightward equivalent, for example, would rule the text of the 2nd Amendment requires the government to buy arms for citizens or would require militias.

                Homosexuality/abortion and many things may indeed be good and require protection — but in the constitution they ain’t!

                1. Your concern about race-baiting would be more important it you were not a right-wing bigot.

                  Carry on, clinger.

            2. Another obvious analogy would be a conservative majority finding a Lochnerian freedom to contract.
              The right’s exasperation in the area of individual rights jurisprudence stems (sorry to burst Arthur’s bubble) from the apparent rule that only the left gets to make up rights as they go along.

    2. I assume you think that the 14th amendment requiring same-sex marriage is an example of being “inclined to rewrite laws at his whim”.

      But the rulings that states could opt out of the Medicaid expansion, the dissent that the mandate was unconstitutional, and Citizens United all all examples of applying “the laws as they are and not as he wants them to be”.

      Anytime a ruling goes against out side we’re tempted to delegitimize it by referring to it as the work of “activist judges”. In reality, you’re mostly just dealing with a judicial philosophy that doesn’t match your own.

      1. Of course there are competing judicial philosophies, but they’re not all equally valid.

        Judges who look to the text and original understanding, with certain rules like the rule of lenity and and a presumption for liberty, are sometimes going to make bad calls – because rules don’t apply themselves, humans apply them, and humans make mistakes.

        Judges who look to a “living constitution” have set themselves up to make bad calls – especially when they’re not even in the right ballpark.

        1. The basis of originalism is to take the meaning that a reasonable person would have understood at the time of drafting.

          It seems to me the living constitution is to take the meaning that a reasonable person would have understood right now.

          The approach of the living constitution seems more reasonable and reliable to me, you don’t face the challenge of trying to project the mental state of an 18th century person onto a 21st century problem.

          Originalism would also lead you astray on Brown and Loving v Virginia.

  2. “These votes make it seem that we’re an extension of the political process,” she added. “Long-term I think that’s very unhealthy for the court.” Said the pot to the kettle.

    1. WJack “Said the pot to the kettle.”

      You might want to rethink that statement, given that two of the three proximate judicial appointments she must have in mind are Kavanaugh’s and Gorsuch’s, where the Democrats have acted as an arm of the “Resistance.” Frankly, I’m becoming much more favorable toward Kagan, with her development as a Justice.

  3. Perhaps having the Democrats not lose their minds on Bork so badly might have been wise.

    But, oh well.

    When the rules of the game are set, you’re an idiot to not notice.

    1. Perhaps having the Democrats not lose their minds on Bork so badly might have been wise.

      You mean by citing Bork’s actual writings to argue that he was an extremist – an opinion confirmed by his later work – and didn’t deserve a seat, and still letting the nomination come to a vote?

      Funny definition of “lose their minds.”

      1. You mean by citing Bork’s actual writings to argue that he was an extremist – an opinion confirmed by his later work – and didn’t deserve a seat, and still letting the nomination come to a vote?

        Yes, Bork was all for segregation and forcing women to get back-alley abortions. COMPLETELY fair and rational reading of his writings and opinions, of which there was no lack of.

        I’m glad that the Dems used Ted Kennedy, who never did anything approaching the sheer evil of Bork in his life, to make the insipid claim.

        Again, you like the system. Fine. Don’t bitch and moan if the rules don’t benefit you all of the time. Your opposition has decided to play by your rules.

      2. There’s a difference between not finding a right in the existing law and thinking that right shouldn’t be granted by legislation, or ignoring that right even if it is granted by law.

        So we have abortions being legal and paid for by the public treasuries because of a left-liberal right found under the privacy rock (also not explicitly in the Constitution), and the 2nd Amendment right that is openly declared and all but ignored in states like California.

        I imagine had the 2A been treated as abortion rights have, the Democratic Party would be for free fully automatic weapons and ammunition to any American of 18 years or older.

        1. More like 15 years or older. They fervently protect the rights of minors to obtain abortions without the knowledge or consent of parents.

          1. Funny you guys return to abortion and segregation.

            Bork didn’t care for free speech as we see it today. He also supported very restrictive morality codes. His views were and continue to be far out of the mainstream.

            1. Bork is just about the worst kind of Republican judge (hi, Roy Moore!), and I’m glad we got Kennedy instead. But I can’t say I’m happy about the process and its effects in the 30 years after

              1. I’m OK with a candidate’s views coming to matter if it helps avoid stuff like Bork.

                I agree the process now is pretty bad, but I don’t think Bork is the but-for cause.

                Or at least, not the actual real Bork and his actual real confirmation.
                The mythological Bork and the legend of what liberals did are very relevant.

                1. I hear ya and agree. IMHO the crap around the Thomas hearings was far worse than Bork.

    2. According to Brennan’s biography, he was very upset about how Bork was treated in the confirmation battle. Shows a lot of respect for the judicial role considering how bad things were going from Brennan’s perspective on the post-Warren court.

      I don’t think Bork is the starting point, but he was one of the large visible casualties. I think the first blow was struck unintentionally when the Fortas nomination to Chief went sideways. Not only did it hand Nixon a seat to fill, it also led to discovery of Fortas’ financial improprieties. Handing Nixon both Warren and Fortas’ seats that could have been filled by LBJ.

      1. Marbury. Dred Scott. Court packing.

        There was never a time when the Supreme Court was insulated from politics.

        Nor is it “new” that the Court finds rights that aren’t specifically enumerated in the Constitution. Lochner would like a word with you.

        I think what is honestly different now is not something really discussed in the above comments, which is that we have sorted ourselves out politically to an extent that we haven’t seen since before the Civil War. In other words, there are no longer any conservatives in the Democratic Party and there are no longer any liberals in the Republican Party. Which means, each Supreme Court seat becomes a pure fight to the death over ideology. You can no longer appeal to EITHER PARTY’S BASE with a process argument that nominees ought to get confirmed if they are qualified, or that we should confirm their nominees so that they will confirm ours, or that only the most extreme nominees should be blocked.

        That’s the reality. It isn’t that judging is more politicized. Judging is about as politicized as it has always been, which is, by the way, somewhat short of being totally politicized. But our partisan divide is, in fact, completely politicized.

        1. ” no longer any conservatives in the Democratic Party”

          Manchin, Heidi Heitkamp, Jon Tester & others are not exactly liberal.

          Roberts was confirmed with about half of the Democratic caucus. Alito was a close vote but he is clearly strongly ideological & it was a swing vote. He still received a few Democratic votes & there wasn’t an actual filibuster or anything. Garland/Gorsuch was an atypical situation. And, even there, a few Democratic senators was very wary about a filibuster. Kavanaugh isn’t exactly a business as usual thing either. OTOH, Sotomayor/Kagan was & only a few Republicans voted for them.

          Before “both sides do it is shown,” I have to actually see Democrats in a simple nomination akin to Sotomayor/Kagan do it. I realize you assume they would do it too, but didn’t actually happen yet.

          1. Yeah, but now, after Garland/Gorsuch, what’s your prediction on what Dems will do? Maybe more interesting, what’s your prescription on what they should do?

    3. Perhaps having the Democrats not lose their minds on Bork so badly might have been wise.

      Bork’s candidacy was sunk by Republicans, not by Democrats. And deservedly.

  4. “I think that’s not the way we think of ourselves”

    Stop lockstep voting with the other Dems on the court on political issues and maybe realty will catch up with your delusional thinking.

    1. Bob, Elena Kagan is one of the smartest people on a court full of very, very smart people. Whatever you might say about her, calling her “delusional” just reflects badly on you, not her.

      1. John Nash was both one of the smartest people to live in the past few decades… and wildly delusional about many things.
        Nikola Tesla was genius in the way storywriters wouldn’t dream to make their characters… but his grip on reality was never too strong.

        Just because someone is smart about on thing – say, law – doesn’t mean they are good at other things, or that they even have a tenuous grasp on those other things. Remember, the Supreme Court was made up “very, very smart people” when they decided Dred Scott and Plessy v. Ferguson.
        It isn’t an unreasonable conclusion to look at Supreme Court Justices as politicians, when you have the “wise latina” or the “Notorious RBG” on the court, speaking and acting in very political ways. Delusion would be denying such a viewpoint, in the face of such evidence.

        1. You’ve really twisted Kagan’s words here, as well as Bob’s.
          Kagan is actually not delusional and is just saying partisanship is bad, and you managed to ignore Bob’s entire predictable ‘I blame Democrats’ post.

          1. I did not quote either of them, although I did use one word also used by each of the other two, so there’s no way I could have “twisted” their words.

            Kagan is claiming that some people view the Justices as politicians, and that they Justices do not see themselves that way.
            Bob is claiming that Kagan behaves as a partisan political creature by voting in lockstep, and is delusional to pretend otherwise.

            I pointed out that Dilan’s claim that Kagan could not be delusional because she is “very, very smart” doesn’t hold up, and gave specific examples.

            You, on the other hand, have “twisted” my words. I don’t care about Bob’s “attack the Democrats” post. I didn’t respond to it. I responded to a post that was attempting to place Kagan beyond reproach because she is “very, very smart”. Attacking me for not addressing something that was relevant to my post is the same sort of dishonest and biased behavior that you are complaining about from Bob.

            1. Sarcastr0, it’s like you tossed a pebble into a mud puddle, and a depth charge went off.

        2. Are you saying Kagan was schizophrenic?

      2. More or less with Dilan.
        I am pretty comfortable with Loki’s rule, which, IIRC, is that if Roberts and Kagan agree, then that’s probably the right answer.

    2. “Stop lockstep voting with the other Dems on the court on political issues and maybe realty will catch up with your delusional thinking.”

      Kagan votes with the conservatives roughly 60-70% of the time. Since 2017 she’s been the least “lockstep” of the so-called liberal justices.

      1. NToJ: “Kagan votes with the conservatives roughly 60-70% of the time”

        Not unless you’re including unanimous and near-unanimous decisions. But yes, she seems to be sliding toward the center, which concerns cultural-Left outlets such as “Slate.”

        1. It concerned me from the moment she was nominated. Just from her history, I expected her to turn out to be a full-on corporatist. Experience has eased that concern (but only a bit). She writes well?a trait which bespeaks independence of mind. I’ll wait and see.

        2. “Not unless you’re including unanimous and near-unanimous decisions.”

          Yes, I’m counting those instances where Justice Kagan agreed with conservative justices. If you compare her voting trends (with liberals) with those of conservatives, he’s more “lockstep” than Roberts and Kennedy, and less “lockstep” than anyone else (although Breyer is close).

  5. Sadly, the Republic died during post-FDR New Deal decisions.

    Outside Thomas (imperfect as he is) I do not see the guts to turn us back to the Constitution as written.

    Wake me when the Civil War 2.0 starts …

    1. ah yes, unanimity of the graveyard.

    2. Sadly, the Republic died

      Either make America like DWB thinks it should be, or he’ll whine further on the Internets!!

      1. He not only will whimper, he might start muttering about the right-wing revolution against all of this damned progress, science, tolerance, reason, modernity, and education!

  6. If Justice Kagan is lamenting the partisanship in our current context, she is likely to be nearly inconsolable when the Court is enlarged.

    Like the guy who was turned into a newt, though, she will get better.

  7. Kagan may be “smart.” but apparently does not have the common sense to look in a mirror before commenting about others, and yes, I did look in a mirror.

  8. “We should all pretend that the junior varsity policymakers aren’t actually junior varsity policymakers.”

  9. It appears that Justice Kagen is looking at the unintended consequences of the lynch-mob mentality found in Progressives of both sides.

  10. “It’s an unfortunate thing. Because it makes the world think we are sort of junior varsity politicians. I think that’s not the way we think of ourselves, even given the fact that we disagree,”

    To turn a phrase used by Justice Roberts, the way to stop having the word think of you as junior varsity politicians is to stop acting like junior varsity politicians.

    I know the left is generally hostile to textualists. But at least you can control their decisions by writing or changing laws. It’s the “well, the constitution ought to” or the belief that the constitution is some long-winded way of just saying “do no evil” (with “evil” meaning the things five justices don’t like) that drive me crazy. Of course, that’s only made worse whenever people (and especially politicians) just run to the courts whenever there’s a political outcome they don’t like.

    1. Liberals are okay with the text, like “equal protection” of “persons” applying to all persons and looking at the whole text of the Second Amendment. There is a difference of opinion on what the text means though.

      Anyway, if “nonetheless the President was entitled to his Supreme Court pick,” that applies to Garland too. But, that is wrong in a key way. There is not “entitlement” here. There is an advise and consent and the Senate has the power to check. And, the process involves appointment and confirmation by political actors. John Adams didn’t nominate Jeffersonians. Mere “qualifications” is not the only judgment call here.

      Different sides (and there are sides) of the Supreme Court say things like this and it’s a tad annoying while they clearly split on important issues. There were many key, at times quite strong, 5-4 splits this term in particular. And, then there are other issues of a political nature that she should not really get into, but she knows it is out there, that adds heat now in particular.

      She can “lament” as much as she wants, but she isn’t new. It’s like when she wrote a piece arguing nominees should be more open about their view and suddenly she changes her mind when she is the nominee. It’s not surprising and happens in the executive and legislative branch too. Still sorta lame.

  11. Kagan is a dependable liberal vote, a bit to the left of Breyer and way to the left of Kennedy per the Bayesian chart “Ideological leanings of United States Supreme Court justices” (wikipedia), but any fair person reading her opinions will admire her intellect and ability to write clearly.

    As I recall, she was appointed partly because of her perceived ability to go toe to toe with intellectually with Scalia, a job that the dogmatic Ginsburg (affirmed 96-3 BTW, though replacing a the centrist Byron White), was not handling well.

  12. Just wanting to mention that where at first I could not understand why Elena Kagan rose to the positions of prominence that she has, I am now a Kagan admirer, being truly impressed by her skill in getting to the heart of matters without fear or favor and in her capacity to interact with others without the childishness we witness daily. She makes it look easy.

Please to post comments

Comments are closed.