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What Kind of Supreme Court?

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Stanley Kutler

The follies that are the Senate Judiciary Committee hearings on Supreme Court nominations returned with Solicitor General Elena Kagan in the hot seat, but with a new twist. Kagan had famously written that the lack of "meaningful discussion of legal issues" has given the confirmation process "an air of vacuity and farce," resulting in a failure to properly evaluate nominees or educate the public on the court's role.

Anticipating the hearings, Kagan deftly backpedaled, allowing that some questions "cannot be answered consistently with the responsible performance of the job the nominee hopes to undertake." Kagan's ambition is apparent, and we expected her to submit and play the game of non sequiturs, offering an avalanche of words, signifying precious little. The senators showed off; she returned the favor with proper humor and humility.

Kagan's credentials and qualifications are clear. Yet ritual required senatorial posturing for the television cameras, while the audience can measure Kagan's patience, or be outraged by her failure to meaningfully discuss the legal issues.

It is often assumed that the Senate hearings took on a different tone with the nominations of Robert Bork (1987) or Clarence Thomas (1991)--or even that of the current ranking Republican, Jeff Sessions, R-Ala., whose 1986 nomination to the U.S. District Court for the Southern District of Alabama was withdrawn after a negative committee vote. However, the Senate often rejected Supreme Court nominees in the 19th century and, as early as 1930, failed to confirm Judge John Parker, citing his support for segregation.

The recent caricatures of the confirmation process began with Kagan's former boss, Thurgood Marshall, the first African-American to be named to the court. The committee's chair, James Eastland--from Mississippi at a time when voters of that state chose only Democrats committed to segregation--assaulted Marshall relentlessly. Marshall's great "sin," in Eastland's universe, was that the court had begun to enforce the 14th and 15th Amendments of the Constitution, specifically their doctrines that no state can deny American citizens the "equal protection of the laws," deprive them of their right to due process of law, or deny their right to vote "on account of race, color, or previous condition of servitude."

Confirmation hearings offer little in the way of substance and insight into a nominee's conception of the judicial function. Instead, we have only convoluted questions to determine, for example, a nominee's views on abortion. The answers, of course, are equally convoluted, with no clear, discernible view. Or we get the intentionally disarming reply of John Roberts that he is just an "umpire." The great Chief Justice John Marshall wrote "it is emphatically the province and duty of the judicial department to say what the law is." Marshall knew the function was not automatic, and that judges call 'em as they see 'em.

The senators resort to cliché-ridden, prepared statements, instead of any impromptu give-and-take questioning. They are stump speeches designed for the folks back home, repeatedly invoking such mantras as "judicial activism" and "judicial restraint."

Sen. Sessions repeatedly lambasted "activist" judges. Undoubtedly, he would have disdain for a judiciary that declared state-mandated classroom prayers unconstitutional. Yet Justice Hugo Black, his fellow Alabaman who wrote that decision, insisted that his constitutional conservatism and "strict construction" of the Constitution dictated that result.

William Rehnquist, the leader of the ideological political conservatism on the court in the 1980s and '90s, and several of his progeny curiously claim their roots in the career of Justice Robert Jackson, an avowed liberal. In his book "The Struggle for Judicial Supremacy," Jackson assaulted the then-expansive judicial power, which overturned 13 New Deal laws in less than three years. The Senate committee might well query the nominee on Jackson's opinion, striking down requirements for saluting the flag. In defense of the Jehovah's Witnesses, Jackson boldly and conservatively asserted that to sustain the statute required the court to say "that a Bill of Rights which guards the individual's right to speak his own mind, left it open to the public authorities to compel him to utter what is not in his mind."

The beauty of such opinions by Black and Jackson is that they render the convenient slogans "judicial activism / judicial restraint / liberalism / conservatism" to be barren abstractions, bearing little on the court's role. And what do our right-wing ideologues make of Justice Antonin Scalia's opposition to ordinances against flag-burning?

Confirmation hearings should remind us of what has been remarkable in our constitutional and judicial history. Judicial restraint as a rule is appropriate. But what should we expect of courts when they confront glaring inequities or contradictions to our constitutional doctrines?

The lamentable fact is that our political system often results in gridlock when entrenched interests confront rising demands for change. What political process provided a legislative opportunity to cure the encrusted, vested practices of segregation and malapportionment? Certainly, all-white Southern legislatures (by design, not by chance) or malapportioned legislatures (again by design) offered no opportunity or even prospect for change. Government by judiciary indeed is fraught with dangers of tyranny, but we are similarly threatened by unrepresentative and unresponsive legislatures. "I'll be damned if I'll vote myself out," one Maryland legislator said in 1962 in response to a move for reapportionment. How then do we implement the lovely principle that redress of grievances lies at the polls, not in the courts?

Critics of judicial intervention often take refuge in a demand for constitutional amendments. But the path for amendment, like that of legislation, often is blocked by inertia or irresponsibility. It is not difficult to "buy" one-fourth plus one of state legislators to block change. Could we reasonably expect a malapportioned Congress and state legislatures to provide an amendment mandating desegregation? Or reapportionment?

Certainly there are limits to judicial wisdom and to the idea of committing broad policymaking power to judges. As such, we need not deviate from the post-1937 prescriptions: Judges should presume the constitutionality of legislative policy, but they should apply severe scrutiny to legislation affecting processes of free political discourse, association or balloting which are the foundation for making substantive legislative and executive policy choices.

In truth, judges have prompted, even forced, legislatures and executives to deal with problems they would rather ignore. Sadly enough, despite contemporary rhetoric, our political institutions and our society have come to expect--and accept--such a judicial role. Witness the process and conclusion of United States v. Nixon. Inadequate, improper slogans are no substitute for a sensitive appreciation of either our institutional dilemma or our political and social realities.

The Justices who upheld segregation in Plessey in 1896, no doubt regarded themselves as "umpires," mechanically making the call as something right or wrong. But later umpires made different calls, guiding and enabling us to a better course, and to "a more perfect union."

Kagan's hearings did not discover Kagan's beliefs about much, if anything. Instead, they once again offered senators a vehicle to argue their views. Republicans forcefully state their "judicial philosophy"; perhaps Democrats might usefully educate the audience on the court's historical commitment to free up our political processes and keep open the channels of persuasion. We might then have had the hearings that Elena Kagan once so eloquently described.

Stanley Kutler is the author of "Judicial Power and Reconstruction" and other writings.

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