Elena Kagan

I have never gotten particularly interested in Supreme Court nominees or the Senate hearings over their confirmation or rejection. Not even the Robert Bork and Clarance Thomas episodes made me want to read everything I could get my hands on about them. This is not because I assume the balance on the Court is unimportant; on the contrary, even a clinging familiarity with American history proves easily and quickly the reverse. But I am not a lawyer, and I am not a Constitution expert either, so I don't have a lot of self-confidence in being able to zero in on what a nominee's statements do or don't portend.

I still feel that way, but not so strongly after Ms. Kagan said the following on June 27 as part of her prepared statement: "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."

As it happened, the June 28 Washington Post, in a banner quote on the top of the front page, excised just a part of this remark, and displayed her comment as follows: "The Supreme Court must respect the choices made by the American people." The Post used no ellipses, so that a reader would not know that words had been eliminated unless he or she looked deeper into the text. And it is true: The whole remark does not take one's breath away to the same extend as the surgically carved out quotation does. Still.

The whole remark, I think it is fair to say, is a great example of deliberately meaningless equivocation. It is a diplomatic remark if by diplomat one means, as some wag once said, a person who thinks twice about saying nothing. I don't know anyone in this country who thinks that the Court should overstep its proper bounds or violate individual rights. Neither does Elena Kagan. I think it is also fair to say that the Court has to recognize the limits on itself, because those limits are clearly set by the Constitution: The Court is composed of justices nominated by the President and confirmed by the Senate. It is this last remark, the one the Post's editor chose to highlight, that is non-trivial, and troubling.

Of course, it does sound trivial. It's a good thing, one would think if one did not know any better, to respect the choices made by the American people. Except that in this case it's not a good thing, depending on what choices one is talking about. Sure, the Court has to respect election results; it can't decide that an elected President, say, can't be President because the Court doesn't like him. But that's not what this remark says. If it means anything, it means, as any sentient being can see, that the Court should defer to the moral-cultural sensibilities of public opinion. That is a problem, because that's exactly what the Court was established not to do.

In the American Enlightenment way of seeing things, a republic is distinguished from a democracy. A democracy, as it was generally understood at the time, was a direct, plebiscitory operation, a Rousseau-like beast. A republic was an indirect democracy, a mediated structure insulated from the dangers of mob-like passions by several means. One of these means, in the American case, was a government divided into Executive, Legislative and Judiciary parts--the famous checks and balances of the U.S. Constitution. Another was the system of federalism, which privileged subsidiarity as an organizing principle, though that is not what Jefferson and his associates called it at the time. This system has been mangled by the 17th Amendment, which destroyed a major facet of the federal system, and which also has caused the Judiciary to take a far more active hand in the maintenance of American federalism than the Founders intended. It still exists in attenuated form, however, of which the Electoral College is a remnant. But the main means of protecting the republic against mob-like passions, fads and foibles was the Supreme Court. Of all the branches of government, the Supreme Court is the one that plays the greatest role in protecting representative democracy and, it follows, is also the least directly accountable branch of government. Voter-citizens can't do anything directly about Supreme Court decisions. They can only indirectly influence who sits on the court via electing the President (insulated from the rabble by the Electoral College) and via electing the Senate (insulated from the rabble formerly by State houses). Say what you will about the imperfections of the Constitution, or for that matter of James Madison himself, but this was an act of sheer genius.

And so a question: Unless Kagan missed a critical day in her 8th grade civics class, how the hell can we explain how someone about to become a justice of the U.S. Supreme Court could say such a crazy thing, and in a prepared statement no less?

I will give her this: Asked later to comment on a remark that President Obama had made--that the law can get a judge nearly all the way to a decision, but the last little bit needs to come from the judge's heart--Kagan did not take the bait. She said that a judge's heart had nothing to do with the matter; only the law counted, from start to finish. Well, that is comforting, if she really meant it. But it's hard to know what she does mean; her most impressive skill demonstrated to date is her seemingly limitless capacity for equivocation--for using a whole lot of words to say basically nothing.

I am not a Senator, but if it were up to me to vote, I would vote not to confirm based on this one remark alone. It is demonstrative either of ignorance, a general lack of seriousness or an intent to befuddle. I don't know for certain which of the three it is, but all three are grounds for rejection as far as I'm concerned.