If someone does a word cloud of today’s opening statements in the Kagan hearing, the word “activism” will dominate the screen. And this is nothing new. Conservative senators figured out a long time ago that if they label anyone to the left of Samuel Alito a “judicial activist” then their more progressive colleagues will put their tail between their legs and cower.
Today, however, this tactic backfired.
Sure, Republicans brought their typical bluster to the hearing. Sen. Jeff Sessions (R-AL) warned that Kagan may try to “change” the law’s meaning after she becomes a judge. Sen. Jon Kyl (R-AZ) suggested that Kagan would “abandon impartiality and instead engage in results-oriented judging.” These warnings, however, were largely empty. Sessions, Kyl and their co-ideologues brought little in the way of evidence that Kagan wouldn’t follow the law. In many cases, their attacks boiled down to nothing more than insinuations that there must be something wrong with General Kagan because she once heaped praise on her former boss, Justice Thurgood Marshall.
These attacks on Justice Marshall sparked what was easily the most eloquent moment of the hearing, Sen. Dick Durbin (D-IL) reminding Senate Republicans exactly who they were going after:
On at least three or four occasions I have been disappointed by my Republican colleagues warning us that you just might follow in the tradition of Justice Thurgood Marshall. . . . Let me say for the record, America is a better nation because of the tenacity, integrity and values of Thurgood Marshall. Some may dismiss Justice Marshall’s pioneering work on civil rights as an example of “empathy”—that somehow as a black man that had been a victim of discrimination, his feelings became part of his passionate life’s work—and I say “thank God.” The results which Justice Marshall dedicated his life to broke down barriers of racial discrimination that had haunted America for generations. . . . And I might also add that his most famous case, Brown v. Board of Education—if that is an activist mind at work, we should be grateful as a nation that he argued before the Supreme Court, based on discrimination in this society and changed America for the better.
Beyond this stirring rejection of conservative smears on Justice Marshall, the Committee’s progressives came armed with actual examples of right-wing judicial activism. Progressives like Sens. Durbin, Chuck Schumer (D-NY), Amy Klobuchar (D-MN) and Al Franken (D-MN) each focused on cases where the Roberts Court placed a conservative agenda ahead of the law. Citizens United and Ledbetter were both villians in today’s hearing, as were lesser known cases such as Gross v. FBL Financial Services, which stripped many older workers of their ability to challenge age discrimination, and Stoneridge v. Scientific-Atlanta, which left many investors powerless against securities fraud.
At the conclusion of today’s session, Kagan herself finally got a chance to speak. Although her brief statement was heavy on biography and statements of gratitude, it also included an important indicator of what kind of justice she will be. Yesterday, Sessions demanded that Kagan embrace “tentherism,” a radical theory of the Constitution which requires the Supreme Court to strike down health reform and other laws that conservatives don’t like. Kagan’s statement firmly rejected this demand:
What I most took away from [my government service] was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.
Tomorrow, the senators get to grill Kagan, and the real drama begins. In the meantime, however, Kagan and her allies appear to have finally found their voice on judicial issues. They have learned to embrace democracy and decry the very real activism of the right. Sessions and his ilk did not come off very well by comparison.