Elena Kagan did everything short of sign a covenant in her own blood to reassure gun-loving senators that she would never seek to undo a watershed Supreme Court decision extending the right to bear arms.
The Monday ruling set the tone for the repeated gun-related exchanges between Ms. Kagan and members of the Senate Judiciary Committee who, that very day, began hearings to evaluate her worthiness for the country’s highest tribunal.
In McDonald v. Chicago, the court sided 5-to-4 in favour of a private citizen who contested the city’s ban on handgun ownership. Justice John Paul Stevens, the retiring 90-year-old liberal lion whom Ms. Kagan would replace on the court, dissented with Chief Justice John Roberts, charging that the decision’s consequences could be “destructive – quite literally – to our nation’s communities and to our constitutional structure.”
But the Manhattan-bred Ms. Kagan, at 50, a self-confessed lifelong progressive Democrat, was unmoved. If she said it once, she said it a thousand times during the hearings that ended Thursday: McDonald is now “settled law” and she would never try to “mess” with it.
The powerful National Rifle Association wasn’t buying it. On Thursday, it urged senators, who will vote later this month on Ms. Kagan’s appointment by President Barack Obama, to reject the accomplished former Harvard Law School dean. The NRA said it found “no reason to trust her with Americans’ firearms freedom.”
The gun lobby’s suspicion of Ms. Kagan is hardly misplaced. After all, Mr. Obama is an urban liberal. There is every reason to expect that he, like almost all presidents before him, would use his executive privileges to appoint judges to the top court who embody his judicial and political philosophies.
There’s another reason, too. As a senator, Mr. Obama vehemently opposed George W. Bush’s two nominees to the Supreme Court, Justice Samuel Alito and Justice Roberts. As President, he has repeatedly ripped into decisions made by the court’s Roberts-led conservative majority, calling a January 5-to-4 ruling that struck down limits on corporate spending on elections “a victory for powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
Judges, of course, are not avatars for those who name them. Some presidents have even openly regretted their choices. “I made two mistakes and both of them are sitting on the Supreme Court,” Dwight Eisenhower famously quipped about Justices Earl Warren and William Brennan, both beacons of liberal activism.
But given Mr. Obama’s antipathy toward Justice Roberts and his conservative cohorts, no one expects him to nominate judges who would rule like them. As a former part-time constitutional law professor himself, Mr. Obama is all too aware of the stakes involved.
Since Richard Nixon’s election in 1968, Republican appointees to the court have outnumbered Democratic ones 13 to 4 (including Ms. Kagan). The result is a top court that has moved radically away from the liberal activism that characterized its civil rights, affirmative action and abortion decisions in the 1950s, 1960s and 1970s to one that favours a kind of conservative activism that treats corporations the same as ordinary citizens.
Mr. Obama has made no secret of his desire to change that. Ms. Kagan, currently Solicitor-General in his cabinet, and Justice Sonia Sotomayor, his first nominee, are an honest start. The death of liberal Justice Ruth Bader Ginsburg’s husband a week ago is expected to accelerate her retirement. So, Mr. Obama could get a third nominee during his first term.
