Is US Supreme Court nominee an activist?
Saturday, 26 June 2010
Matthew Rusling
With Senate hearings for US Supreme Court nominee Elena Kagan expected to begin next week, critics are voicing concern over her ability to objectively interpret the US constitution.
But supporters penned a letter in favor of the nominee, writing that Kagan is fair minded and possesses a keen legal mind.
Ranking Senate Judiciary Committee member Jeff Sessions expressed unease in a Heritage Foundation conference call on Wednesday that one of Kagan's judicial heroes is an Israeli judge he billed an "activist."
Former U.S. Attorney General Ed Meese defined activist judges as those who violate their oath of office by interpreting the U.S. constitution according to their personal beliefs, policy preferences or political biases.
"In view of the champions that she says are her heroes, all of whom were extremely activist judges…I think she's going to have to convince the members of the Senate that she disagrees with the pronouncements and the politics and practices of her heroes," he said via the same conference call.
Sessions said this will be one of the hearing's defining issues. "Will this young nominee without much experience but with a lot of clear political views…will she be faithful to the law and the constitution as written… or will she follow the siren song of advocating her policies and bending the law to give it new meaning so it can say what she'd like it to say?"
Meese said he would wait to see what the hearings produced before taking any position on Kagan.
Kagan, currently the U.S. Solicitor General, represents a number of firsts. She was the first female dean of Harvard Law School, as well as the first female solicitor general. And at 50 years old, she would be the youngest addition to the Supreme Court.
But for the first time in decades, she is also one of the few nominees who have never been a federal judge. That makes the job of determining her judicial philosophy a difficult one, as there is no paper train of bench decisions to follow.
Support came on Wednesday in the form of a letter to Senate Judiciary Committee Chairman Patrick J. Leahy and ranking member Sessions from more than a dozen former Supreme Court clerks who worked with Kagan during her 1987-88 clerkship under Justice Thurgood Marshall.
"As was evident during our clerkship year, and borne out by her many remarkable accomplishments since then, Elena is an extraordinarily able lawyer. She has a superb legal mind and a rich knowledge of constitutional and administrative law," they wrote.
"Each of us came to recognize during our clerkship year that apart from her surpassing legal ability, Elena is remarkably fair-minded and intellectually honest," the letter continued. "As a group we had - and continue to have - different views from each other on a number of issues. Regardless of whether any given one of us agreed or disagreed with Elena on a particular issue, however, we came to appreciate her approach in those situations."
While Kagan has expended little ink on her judicial thoughts, some are troubled by the few articles she has written.
Writing on the Heritage Foundation think tank's Web, Meese voiced concern that Kagan in a law review article "expressed agreement with the idea that the Court primarily exists to look out for the 'despised and disadvantaged.'"
"The problem with this view-which sounds remarkably similar to President Obama's frequent appeals to judges ruling on grounds other than law - is that it allows judges to favor whichever particular client they view as 'despised and disadvantaged.' The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws."
Republicans also criticize her for banning military recruiters from Harvard University's campus because of her opposition to the armed services' "don't ask, don't tell" policy toward gays, which prevents the military from "witch hunting" gays within its ranks while barring openly gay individuals from serving. That has prompted criticism of what some opponents call a pro-gay agenda, and Republicans may bring this up during her confirmation hearings.
— Xinhua
With Senate hearings for US Supreme Court nominee Elena Kagan expected to begin next week, critics are voicing concern over her ability to objectively interpret the US constitution.
But supporters penned a letter in favor of the nominee, writing that Kagan is fair minded and possesses a keen legal mind.
Ranking Senate Judiciary Committee member Jeff Sessions expressed unease in a Heritage Foundation conference call on Wednesday that one of Kagan's judicial heroes is an Israeli judge he billed an "activist."
Former U.S. Attorney General Ed Meese defined activist judges as those who violate their oath of office by interpreting the U.S. constitution according to their personal beliefs, policy preferences or political biases.
"In view of the champions that she says are her heroes, all of whom were extremely activist judges…I think she's going to have to convince the members of the Senate that she disagrees with the pronouncements and the politics and practices of her heroes," he said via the same conference call.
Sessions said this will be one of the hearing's defining issues. "Will this young nominee without much experience but with a lot of clear political views…will she be faithful to the law and the constitution as written… or will she follow the siren song of advocating her policies and bending the law to give it new meaning so it can say what she'd like it to say?"
Meese said he would wait to see what the hearings produced before taking any position on Kagan.
Kagan, currently the U.S. Solicitor General, represents a number of firsts. She was the first female dean of Harvard Law School, as well as the first female solicitor general. And at 50 years old, she would be the youngest addition to the Supreme Court.
But for the first time in decades, she is also one of the few nominees who have never been a federal judge. That makes the job of determining her judicial philosophy a difficult one, as there is no paper train of bench decisions to follow.
Support came on Wednesday in the form of a letter to Senate Judiciary Committee Chairman Patrick J. Leahy and ranking member Sessions from more than a dozen former Supreme Court clerks who worked with Kagan during her 1987-88 clerkship under Justice Thurgood Marshall.
"As was evident during our clerkship year, and borne out by her many remarkable accomplishments since then, Elena is an extraordinarily able lawyer. She has a superb legal mind and a rich knowledge of constitutional and administrative law," they wrote.
"Each of us came to recognize during our clerkship year that apart from her surpassing legal ability, Elena is remarkably fair-minded and intellectually honest," the letter continued. "As a group we had - and continue to have - different views from each other on a number of issues. Regardless of whether any given one of us agreed or disagreed with Elena on a particular issue, however, we came to appreciate her approach in those situations."
While Kagan has expended little ink on her judicial thoughts, some are troubled by the few articles she has written.
Writing on the Heritage Foundation think tank's Web, Meese voiced concern that Kagan in a law review article "expressed agreement with the idea that the Court primarily exists to look out for the 'despised and disadvantaged.'"
"The problem with this view-which sounds remarkably similar to President Obama's frequent appeals to judges ruling on grounds other than law - is that it allows judges to favor whichever particular client they view as 'despised and disadvantaged.' The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws."
Republicans also criticize her for banning military recruiters from Harvard University's campus because of her opposition to the armed services' "don't ask, don't tell" policy toward gays, which prevents the military from "witch hunting" gays within its ranks while barring openly gay individuals from serving. That has prompted criticism of what some opponents call a pro-gay agenda, and Republicans may bring this up during her confirmation hearings.
— Xinhua