Senator Jeff Sessions (R-AL) used his bully pulpit as the ranking Republican on the Senate Judiciary Committee to be a bully during the first day of confirmation hearings for Supreme Court candidate Elena Kagan. His opening remarks were a series of unsubstantiated personal attacks with the primary intent of degrading the nominee. This of course is to be expected from the right, which has made hypocrisy an art form and inconsistency a virtue in their differential treatment of Republican and Democratic nominees to the Court. So while reprehensible, such boorish behavior is not the story.
Senator Orinn Hatch (R-UT) used his opening statement to question Kagan's intellectual qualifications and experience, but the tone was reasonably respectful. But like Sessions, Hatch had other axes to grind, and therein lies the more interesting narrative. Sessions and Hatch revealed unintentionally, but clearly in their questioning of Kagan a GOP agenda driven by spite rather than principle a wanton disregard for truth in pursuit of short-term political advantage, and the shameless ability to twist, squeeze and distort reality to maintain a position unsupported by fact or history. While none of those characteristics is shocking, rarely are they revealed so starkly in the light of public debate.
Hatch was more interested in quarreling with President Obama than in evaluating Kagan. Gnawing at Hatch like a poppy seed caught stubbornly between his teeth was Obama's response to the now infamous Citizens United v. Federal Election Commission case. As a reminder in that case, the Supreme Court threw out the prohibition on corporate spending on political campaigns, gutting existing campaign financing laws. The opinion authored by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas drew the incredible conclusion that, "No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations."
In his State of the Union address, Obama disparaged the Supreme Court ruling, saying that:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.
Well, I never! How could he? Hatch just could not stand such impertinence and simply needed to set the record straight, using Kagan as a prop for his theatrics. Worthy of note is that Hatch's strict sense of protocol was apparently not offended when Representative Joe Wilson (R-SC) yelled out "You lie!" during that same presidential speech. Anyway, moving beyond that obvious hypocrisy, Hatch had something else stuck in his craw: the liberal complaint that Citizens United was another example of conservative judicial activism. Such an accusation is particularly hurtful because the right's primary complaint about liberal justices is their alleged propensity to make law from the bench. Hatch repeatedly disparaged Thurgood Marshall, Kagan's mentor, for just such activism.
Hatch's position on activism conveniently and with a heavy dose of intellectual dishonesty ignores Bush v. Gore in which a 5-4 majority of the Supreme Court usurped Florida's election law and overturned a decision by the Florida Supreme Court, all actions that undermine the "states' rights" doctrine. You see deference to states' rights was, until then, touted by conservatives as a fundamental principle of judicial restraint, and any violation of that principle was seen as liberal judicial activism. Until Bush v. Gore that is. Hatch then goes on with contorted logic to defend the Citizens United ruling as nothing but conservative judicial philosophy that could be ruled upon no other way based on years of precedent. On the strength of such precedents Hatch huffed that any accusation of conservative judicial activism was absurd, stating hopefully that "the rulings in question were firmly grounded in the law." He finally said, "I get a little tired of people on the left saying it was a terrible case that was wrongly decided." Hatch is terribly wrong.
Remember from civics class that the First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Based on the original text, many mainstream legal scholars dismiss Hatch's apologia outright by noting simply that corporations do not enjoy equal rights as individuals to vote or campaign for elected office. Labeling corporate contributions "speech" is itself a subject of great debate. And certainly other senators disagree with Hatch. Senator Russ Feingold (D-WI) said, "Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns."
But Hatch is so committed to the idea that only liberal judges are activists he is blind to the obvious interventions from the bench when conservative judges rule. Hatch selectively chooses examples that support his idea and rejects all others. Such selective data mining is one reason he is able to cite "precedent" to support the Citizens United ruling; he just ignored or dismissed opposing precedents.
In response to Hatch's repeated questions on the subject, Kagan said that while she believes the case was wrongly decided, the ruling made it "settled law, entitled to all the weight precedent usually gets" no matter her personal views, thereby reintroducing some maturity into the proceedings.
As weirdly focused as Hatch was on Citizens United, Sessions was obsessively determined to get Kagan to admit to a history that did not comply with the facts concerning her actions while dean at Harvard. She was working to enforce Harvard's anti-discrimination policies while accommodating the military on campus, a conundrum because of the military's discriminatory "don't ask don't tell" policy for gays and lesbians. The Solomon Amendment, of which Sessions is a co-author, requires universities that receive federal money to give full access to the military. But giving full access as required by the amendment would violate Harvard's policies. Kagan worked honestly to reconcile those competing interests. Sessions though, simply accused Kagan of lying when she quite clearly explained her rationale and actions, including finding alternative means of allowing military access on campus. He accused her of "punishing the military" without substantiating the accusation. As with Hatch, Sessions drew a conclusion based on selective data mining, ignoring all that does not support his view. He wants to believe that Kagan is anti-military and will twist and contort the facts to support that conclusion. Sessions stoops low enough to call Kagan's character in question because she acted in ways that oppose his own concepts of the ideal.
Supreme Court nominee hearings clearly bring out the worst in Republicans. The contradictions and hypocrisy seen in their differential treatment of Republican and Democratic candidates for the court are awe-inspiring (http://www.huffingtonpost.com/jeff-schweitzer/weeks-funniest-joke-gop-d_b_541572.html). The pious call to end liberal judicial activism in the face of unprecedented conservative judicial activism is stunning. We hear calls for speedy hearings for Republican nominees, drawn out hearings for Democrats so that the "entire record" can be scrutinized. We witness the right touting the principle that "elections matter" when a Republican is in the Oval Office, implying deference to the president's prerogative to nominate, but dismissing that same principle when a Democrat is in the White House. We see a demand for a "mainstream" judge for Democrats, but gleeful celebration of right-wing conservative credentials when a Republican is being considered. The list goes on extensively.
The questions lobbed at Kagan during her hearing reflect many of these shortcomings in Republican thought and soft support for principles based on expediency rather than conviction. In fulfilling their constitutional role to advise and consent on court nominees, Sessions and Hatch exemplify much that is wrong with our politics today.
Jeff Schweitzer is a scientist, former White House senior policy analyst and author of, Beyond Cosmic Dice: Moral Life in a Random World (Jacquie Jordan, Inc)(http://www.tinyurl.com/CosmicDice). Follow Jeff Schweitzer on Facebook.