How Not to Fight Kagan

An outfit called the Judicial Crisis Network has led the opposition to Elena Kagan. But many of their statements have discredited their own message.

In the past few weeks, an outfit called Judicial Crisis Network has been leading the opposition (such as it is) to Elena Kagan’s nomination to the Supreme Court.  Mostly, JCN simply confirms what everybody already knows: Kagan is a liberal and holds views disagreeable to conservatives. Executive Director Garry Marx lists them as follows: “Partial-birth abortion, check. Homosexual marriage, check. Gun bans, check.” (My friend and law school classmate Carrie Severino sums up Kagan’s record in greater detail here.) If elevated to the bench, JCN says, Kagan will simply “rubber-stamp” Obama’s agenda.

All fine. For those who wish to take ideology into account, JSN has accurately proved that Kagan leans left.  Still, even if you concede that ideology is relevant to a nominee’s qualifications...  why do JCN’s statements have to be so cringe-inducing? For, not content to enumerate the ways in which Kagan is a liberal (she doesn’t like gun rights, defends partial birth abortion, supports gay rights, etc), JCN denies that Kagan even believes in the Constitution or “the principles of the Declaration of Independence.”  Marx closes one philippic against her with the claim, “Americans of all political persuasions should be outraged at this president’s commitment to lawlessness.”

Now, this is all very rich coming from an organization that has made the nakedly partisan “rubber stamp” talking point the central theme of its campaign.  More importantly, none of it is even true.  Take the charge that Kagan rejects the Declaration of Independence. The supposed evidence comes from this exchange between Kagan and Senator Coburn:

COBURN: So -- so you wouldn't embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren't given in the Constitution, that they're ours, ours alone, and that the government doesn't give those to us?

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: Well, I understand that. Well, I'm not talking about as a justice. I'm talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I -- I think that the question of what I believe as to what people's rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or…

COBURN: I -- I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN: I -- I think you should want me to act on the basis of law, and -- and that is what I have upheld to do, if I'm fortunate enough to be concerned -- to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

In other words, Kagan denies that she rejects the natural rights philosophy of the Declaration. “I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws,” Kagan says. Rather, as she goes on to explain, she does not believe that as a judge she should decide cases based on these natural rights. Coburn indeed was probably trying to trap Kagan into admitting that she believed in natural rights. That would have given Republicans -- and JCN -- an opening to lambast Kagan as a potentially lawless judge who will put her own personal moral views ahead of the Constitution.

Moreover, Kagan’s position on the Declaration is the very one championed by leading judicial conservatives.  Justice Scalia, in his dissent in Troxel v. Granville (2000), went even further than Kagan: he admitted his own views as to what rights the Declaration enshrined, but denied that he had any business deciding cases in order to uphold them.  JCN counters that Kagan must have forgotten the Tenth Amendment-- probably meaning to say the Ninth Amendment, which refers to unenumerated rights not otherwise mentioned in the Constitution.  (The 10th Amendment reserves powers to the people rather than rights.)  Well, on that subject, no less a judicial conservative than Robert Bork famously compared the Ninth Amendment to an unintelligible “ink blot.”  Both Scalia’s and Bork’s views on unenumerated rights -- that is, rights not specifically protected by the language of the Constitution -- are highly controversial, including (perhaps especially) among conservatives and libertarians. What is not controversial is that Scalia and Bork are judicial conservatives who are utterly acceptable to JCN and its allies. Alluding to the story of David and Goliath, JCN calls Kagan’s “refusal to embrace the Declaration” one of “five smooth stones” with which to slay the giant Kagan. Not only did Kagan not so refuse, but the point is flagrantly opportunistic.

Finally, JCN charges that Kagan isn’t committed to the Constitution -- meaning, that she will “rubber stamp” (not strike down as unconstitutional) any legislation that Obama has signed.  This puts JCN in the awkward position of advocating “judicial activism” rather than “judicial restraint,” at least as those words are understood in their ordinary lexical senses.  JCN escapes this position in the only way possible: by conceding that judges have the power of judicial review and therefore should indeed strike down unconstitutional laws.

This is not the place to resolve the weighty question of the proper role of judges in our republic. At least this much is clear:  JCN likes decisions that have struck down gun-control laws, campaign finance laws, and federal laws regulating intra-state activity; it does not like decisions that have struck down laws regulating abortion or defining marriage as between a man and a woman; but it likes decisions that have upheld -- against constitutional attack -- laws denying funds to universities that bar military recruiters.  No doubt a constitutional scholar or other could come up with a theory defending this pattern as consistent with the Constitution. Still, the pattern is not so obviously correct that anybody who rejects it must be committed to “lawlessness.”  On the contrary, even among conservatives, perhaps only a minority accept the pattern as correct in every detail. Of course, JCN has no intention of applying its own standards to every nominee.  What it calls “lawless” is merely “what we have discovered Kagan to believe.”

One hardly expects JCN to come out and confess that they no more care about the proper role of judges or the true meaning of the Constitution than their opponents. Still, JCN’s accusations against Kagan have risen to a level of preposterousness that discredits its own message -- not to mention the message of conservative and libertarian jurists and legal scholars more generally.  For the conservative movement, JCN is another “Mark Levin” problem:  When you see conservatives tolerating absurd arguments merely because they (supposedly) further the cause, you have to wonder whether the movement as a whole can be trusted.