Confirmation hearings are set to begin today on the nomination of Solicitor General Elena Kagan to the United States Supreme Court. Yesterday, appearing on CBS’ Face the Nation, Senate Judiciary Committee ranking member Jeff Sessions (R-AL) explained how he intends to attack Kagan. During the interview, Sessions repeated a tired concern about liberal “activist” judges, only to slam Supreme Court nominee Elena Kagan because she is not an activist.
Sessions laid out a simple test that judicial nominees must overcome: They must not use the courts to thwart democracy:
SESSIONS: The question is: does the judge understand that they can’t utilize the power, the lifetime appointment, to redefine the meaning of the constitution — to have it promote an agenda in an activist way that the American people won’t vote for.
Yet, just seconds earlier, Session attacked Kagan because she does not subscribe to a radical “tenther” philosophy that would eliminate elected national leaders’ power to address national challenges:
SESSIONS: I think this nominee does have serious deficiencies, issues that need to be raised. The American people are concerned about their courts. They’re concerned about a growing expansive government that seems to be beyond anything they’ve ever seen before. And they’d like to know what their judges might have to do about it. So I think that’s kind of where we are.
Sessions can’t have it both ways. America can either have judges who honor the will of an electorate that overwhelmingly supported President Obama and which gave Obama’s party enormous majorities in both houses, or it can have judges who will second-guess laws that Sessions doesn’t like.
Moreover, Sessions is simply wrong to claim that “the American people” prefer tenther judges who overrule laws passed by Congress. Although Sessions has previously implied that judges should strike down the landmark health reforms that Obama signed earlier this year, the American people clearly oppose such a tactic. In a recent poll, 55 percent of the electorate said that they would rather give the Affordable Care Act a chance to work, compared to only 42 percent who would like to see it repealed.
The sad truth is that Jeff Sessions is perfectly happy to endorse an agenda that “the American people won’t vote for.” He only cares about democracy when the voters happen to agree with him. As Obama noted yesterday, the attacks on Kagan have been “pretty thin gruel.”
On CNN’s American Morning, many of Sessions’ arguments were effectively demonstrated to be disingenuous by host John Roberts. Arguing that Kagan has “serious problems,” Sessions complained that Kagan has praised former Israeli Supreme Court President Aharon Barak. But Roberts noted that Justice Antonin Scalia had also praised Barak.
Sessions then attacked Kagan for not having a depth of experience, but Roberts noted that Sessions had praised Bush nominee Harriet Miers, who also did not have judicial experience. Roberts said, “Just a second ago, you pointed to Harriet Miers’ White House experience as a qualifying factor, but you point to Elena Kagan’s White House experience as a potential disqualifying factor.”
Ironically, the only area on which Sessions could find agreement with Kagan was her previous statement that the confirmation hearings can be a “vapid and hollow” process. Watch it: