The chummy, Happy Jack Squirrel time atmosphere of Elena Kagan’s
confirmation hearing is a little hard to take. Yes, she is
“likable enough,” to borrow Barack Obama’s phrase about Hillary
Clinton, but that won’t make her any less destructive on the
Supreme Court. If anything, it will make her more so.
Though generally pleasant, she has seemed a bit cocky and
dishonest at times during the hearing. Notice that she is quite
the confident expert on conscientious judging for someone who has
never done any. And somehow Thurgood Marshall’s doting pupil has
suddenly become an “originalist.”
She offered up several apple-polishing disclaimers about
judicial restraint to a few skeptical senators, but she never
actually repudiated her staggeringly inane tribute to Thurgood
Marshall in the Texas Law Review. “Our modern
constitution is his,” she burbled with approval in that article.
It is a “thing of glory.”
Even in the hearing on Tuesday, where she was clearly
working hard to fog up fundamental issues as much as possible,
she asserted that the meaning of the Constitution can change
“outside” of the amendment process. In other words, activist
judges can change it. To the extent that she articulated her
understanding of “originalism,” it sounded very slippery: not
fidelity to the meaning of the Constitution, but to the “intent”
of it.
What, exactly, does “intent” mean? Anything Thurgoodian
justices want it to mean. True, she said that judges are bound by
the specific requirements that the Founding Fathers placed in the
Constitution, such as the Senate’s age requirement of 30 (yet one
wonders: Isn’t 30 the new 20? Shouldn’t that requirement “evolve”
too under the superior understanding of modern justices?). But
she also implied that judges can freewheel with less obvious
parts of the Constitution when the country is likely to enjoy the
results of that activism (as with civil rights).
This elastic approach explains her inexplicable comment
that a judge can be at the same time an originalist and a living
constitutionalist. It is not an “either or” proposition, she said
to Senator Herbert Kohl, who is an owner of the Milwaukee
Bucks.
Kohl’s questioning, by the way, was impressive in its
workmanlike stupidity. His baldly simple questions to Kagan
sounded like the sort of questions he probably asks of
concession-stand applicants at his arena. I almost expected him
to ask her, “Where do you see yourself in five years?” But a
better question in her case is: Where do you see the “living”
Constitution in five years? Or thirty, for that matter. She is
sure to roost on the court for decades.
Don’t be surprised when the polished and polite Elena Kagan
finds a constitutional right to gay marriage within the shadows
and penumbras of Thurgood Marshall’s Constitution. As the dean of
Harvard Law School, she made it clear that she thinks homosexuals
have an inalienable right to change the ethos of the United
States military. If that’s a right in her mind, then marriage,
which is an even more basic claim than access to soldiering, has
to be one too.
The sparring with Senator Sessions over her decision as
Harvard dean to kick military recruiters off the main campus due
to what she considered the “moral injustice” of Bill Clinton’s
Don’t Ask, Don’t Tell policy was amazingly dishonest and oily.
She loves the “military,” Kagan insisted to Sessions, and no one
should use her Harvard policy to infer differently.
So, as it were, she hates a military policy but not the
military; she hates the sin but not the sinner. When have
gay-rights activists ever accepted that line of reasoning before?
She treated military recruiters in the two-faced way she claims
conservative segments of society treat homosexuals — giving them
second-class status while professing respect for them. This
outrageous treatment of the military would have sunk a nominee in
the past; now almost no one seems to care.
