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U.S. Supreme Court nominee Elena Kagan testifies during her Senate Judiciary Committee confirmation hearing in Washington Monday. Ms. Kagan faced tough criticism from Republicans, but President Barack Obama's pick is expected to win bipartisan approval for the lifetime job. (JASON REED/Jason Reed/Reuters)
U.S. Supreme Court nominee Elena Kagan testifies during her Senate Judiciary Committee confirmation hearing in Washington Monday. Ms. Kagan faced tough criticism from Republicans, but President Barack Obama's pick is expected to win bipartisan approval for the lifetime job. (JASON REED/Jason Reed/Reuters)

Kagan hearings a referendum on U.S. Supreme Court Add to ...

Barack Obama's inchoate legacy - from health-care reform (done) and financial re-regulation (almost done) to limits on election spending (to come) - may not outlive his presidency if the current Supreme Court has anything to say about it. And it will.

The narrow conservative majority on the top U.S. court has struck down decades' worth of progressive legislation. On Monday, it overturned Chicago's ban on handgun ownership, broadening the Second Amendment's right to bear arms beyond the federal realm to prevent state and local governments from coming between Americans and their firearms.

The court led by Chief Justice John Roberts, a George W. Bush nominee, has rarely shied away from rolling back well-established precedents in the name of conservatism, apparently oblivious to the oxymoronic nature of its activism. All signs suggest it would shoot holes - pun intended - in Mr. Obama's game-changing health-care legislation.

Enter Elena Kagan. Mr. Obama's second Supreme Court nominee would not immediately shift the balance on the court, since she would fill the seat vacated by a reliable liberal. But, at only 50 and with long history of adroitly getting her way, she could soon emerge as the court's progressive luminary and guardian of the Obama agenda.

That is why Ms. Kagan's confirmation hearings, which began Monday before the Senate judiciary committee, are less about determining her qualifications for the country's highest bench than they are a referendum on the Roberts court and the need for a strong liberal to keep it in check.

"Kagan is likely to be the intellectual leader of the opposition. She has unique skills that enable her to be a liberal leader when necessary and a moderate consensus builder when possible," George Washington University law professor Jeffrey Rosen said in an interview. "That may make her unusually effective."

Demonstrating the political savvy that enabled her to become, at 43, the first female dean of Harvard Law School and then solicitor-general in Mr. Obama's cabinet, Ms. Kagan played down expectations in her opening statement before the committee. Raising dust is not on her résumé.

While allowing that the Supreme Court is "a wondrous institution," she insisted "it must also be a modest one - properly deferential to the decisions of the American people and their elected representatives."

Talk like that would normally cheer Republicans. They routinely slap the "judicial activist" label on liberal judges, accusing them of making the law instead of just interpreting it. But with the Roberts court now the one regularly gutting legislation, the tables have turned.

California Democratic Senator Dianne Feinstein, who assailed Monday's ruling striking down Chicago's gun law, charged: "We now have more guns than people in this country… And the Supreme Court has thrown aside seven decades of precedent to exacerbate this situation."

New York Democrat Charles Schumer deplored that "in decision after decision, this court bends the law to suit an ideology. Judicial activism now has a new guise: judicial activism to pull the country to the right."

Mr. Schumer has led the charge in the Senate to craft a new bill placing limits on campaign spending to replace the one the Supreme Court struck down in January, saying it violated corporations' right to free speech. The House of Representatives passed a replacement bill last week.

"We need a justice who can create moderate majorities on this immoderate Supreme Court," Mr. Schumer said in endorsing Ms. Kagan.

Barring a change in strategy, Republicans are unlikely to filibuster Ms. Kagan's nomination, meaning that her confirmation requires only 50 votes in the Senate to pass.

But GOP members on the 19-member committee, none of whom got beyond opening statements on Monday, will use the hearings to rile their base. They are already depicting Ms. Kagan as a stealth liberal girding to extend gay and abortion rights and, as Utah Senator Orrin Hatch intimated, "to steer the law to achieve certain social ends."

That was not as rich, however, as Alabama GOP Senator Jeff Sessions's denunciation of Ms. Kagan's three-decade-old college thesis on early 20th-century socialism in New York for seeming "to bemoan socialism's demise there."

Undergraduate enthusiasm for Karl Marx hardly seems like grounds for Ms. Kagan's disqualification. For Mr. Obama, who is counting on her to be a rampart between his agenda and the Roberts majority, it better not.



Follow on Twitter: @konradyakabuski

 

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