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Kagan Reminds Senators: Legislation Is Your Job
WASHINGTON — Supreme Court confirmation hearings are usually designed to probe a nominee’s conception of the role of the justices. But this week’s questioning of Elena Kagan turned into a tutorial on Congressional responsibility.
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Over and over, Ms. Kagan reminded the senators questioning her of their own duty to pass cogent, sensible — and constitutional — laws. The Supreme Court, she said, was not created to strike down foolish measures.
On Tuesday, for instance, Senator Tom Coburn, Republican of Oklahoma, asked what should happen if Congress enacted a law requiring Americans “to eat three vegetables and three fruits every day.”
“It sounds like a dumb law,” Ms. Kagan said. But she would not commit to striking it down. “I think that courts would be wrong to strike down laws that they think are senseless, just because they’re senseless,” she said.
Ms. Kagan repeatedly said she would show “great deference to Congress.” Perhaps surprisingly, that was not what many senators seemed to want to hear. They appeared to want the Supreme Court to save them from themselves.
Richard H. Pildes, a law professor at New York University, said Ms. Kagan’s attitude toward Congress amounted to tough love. “Elena is a hard-minded person,” he said. “She’s lucid and clear and demanding of herself and demanding of others.”
“The deference to Congress that she’s talking about,” Professor Pildes added, “brings with it a real sense of the responsibilities of Congress as well.”
Asked on Wednesday by Senator Orrin G. Hatch, Republican of Utah, why, in her role as solicitor general, she had made an aggressive argument in defending a federal statute outlawing the sale of dogfighting videos, Ms. Kagan said poor legislative craftsmanship had left her little choice.
“I hesitate to criticize Congress’s work,” she said, “but it was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge.”
Ms. Kagan aligned herself with Justice Oliver Wendell Holmes Jr., who held his nose in the early years of the last century while voting to uphold statutes he thought were foolish.
Justice Holmes, Ms. Kagan said, “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”
In his memorable dissent in Lochner v. New York, a 1905 decision that struck down a New York work-hours law, Justice Holmes wrote that the Supreme Court should work hard to stay out of the way where economic legislation is concerned.
“A constitution is not intended to embody a particular economic theory,” he wrote. “It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
That is essentially the answer Ms. Kagan gave, in a kind of confirmation jujitsu, to questions from senators of both parties eager to see their views made into law by the courts rather than Congress.
Senator Amy Klobuchar, Democrat of Minnesota, asked about opportunities for female lawyers. Ms. Kagan agreed that society had far to go. “But this isn’t the court’s role,” she said. “This really is Congress’s role.”
What about the disparity between sentences imposed for trafficking in crack and powder cocaine, one that tends to produce racially skewed punishment? asked Senator Richard J. Durbin, Democrat of Illinois.
“It is a policy issue, quintessentially,” Ms. Kagan responded. “There’s nothing that the Supreme Court or that any court can do about it. It’s really one that Congress has to decide.”
Like judges, members of Congress also swear to uphold the Constitution, Ms. Kagan said, and they should not look to the courts to save them from their folly.
“They ought to be the policymakers for the nation,” Ms. Kagan said of legislators and other elected officials. “The courts have an important role to play, but it’s a limited role. It’s essentially sort of policing the boundaries and making sure that Congress doesn’t overstep its role, doesn’t violate individual rights or interfere with other parts of the governmental system.”
Asked about the criteria the Supreme Court should use in deciding which cases to hear, Ms. Kagan listed three, including conflicts among the lower courts and matters of surpassing significance. But she placed special emphasis on the third one: when a lower court has struck down a federal law.
“That’s a serious thing, to invalidate an act of Congress,” Ms. Kagan said. “You know, for the most part we want to defer to the legislative branch, to the decisions of our elected branches. So that’s such a serious thing that the court is going to take that case.”
Ms. Kagan explained that much of her defense as solicitor general of the Bipartisan Campaign Reform Act of 2002, part of which was struck down in Citizens United v. Federal Election Commission in January, was based on factual findings in The Congressional Record.
Congress, she said, knows how money can warp politics, and she suggested that the Supreme Court should have paid more deference to that expertise.
Mr. Coburn’s question about mandatory fruits and vegetables was, of course, a transparent proxy for the recent health care legislation, and Ms. Kagan knew that.
She gave only a general answer about the limits of Congressional power to pass laws mandating behavior under the Constitution’s commerce clause. But she did say that the Congress had substantial power in another sense.
“The principal protector against bad laws is the political branches themselves,” she said.
A version of this news analysis appeared in print on July 2, 2010, on page A16 of the New York edition.
Blog
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The latest on President Obama, his administration and other news from Washington and around the nation. Join the discussion.
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Readers' Comments
Readers shared their thoughts on this article.
Read All Comments (65) »
Over and over, Ms. Kagan reminded the senators questioning her of their own duty to pass cogent, sensible — and constitutional — laws. The Supreme Court, she said, was not created to strike down foolish measures.
On Tuesday, for instance, Senator Tom Coburn, Republican of Oklahoma, asked what should happen if Congress enacted a law requiring Americans “to eat three vegetables and three fruits every day.”
“It sounds like a dumb law,” Ms. Kagan said. But she would not commit to striking it down. “I think that courts would be wrong to strike down laws that they think are senseless, just because they’re senseless,” she said.
Ms. Kagan repeatedly said she would show “great deference to Congress.” Perhaps surprisingly, that was not what many senators seemed to want to hear. They appeared to want the Supreme Court to save them from themselves.
Richard H. Pildes, a law professor at New York University, said Ms. Kagan’s attitude toward Congress amounted to tough love. “Elena is a hard-minded person,” he said. “She’s lucid and clear and demanding of herself and demanding of others.”
“The deference to Congress that she’s talking about,” Professor Pildes added, “brings with it a real sense of the responsibilities of Congress as well.”
Asked on Wednesday by Senator Orrin G. Hatch, Republican of Utah, why, in her role as solicitor general, she had made an aggressive argument in defending a federal statute outlawing the sale of dogfighting videos, Ms. Kagan said poor legislative craftsmanship had left her little choice.
“I hesitate to criticize Congress’s work,” she said, “but it was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge.”
Ms. Kagan aligned herself with Justice Oliver Wendell Holmes Jr., who held his nose in the early years of the last century while voting to uphold statutes he thought were foolish.
Justice Holmes, Ms. Kagan said, “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”
In his memorable dissent in Lochner v. New York, a 1905 decision that struck down a New York work-hours law, Justice Holmes wrote that the Supreme Court should work hard to stay out of the way where economic legislation is concerned.
“A constitution is not intended to embody a particular economic theory,” he wrote. “It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
That is essentially the answer Ms. Kagan gave, in a kind of confirmation jujitsu, to questions from senators of both parties eager to see their views made into law by the courts rather than Congress.
Senator Amy Klobuchar, Democrat of Minnesota, asked about opportunities for female lawyers. Ms. Kagan agreed that society had far to go. “But this isn’t the court’s role,” she said. “This really is Congress’s role.”
What about the disparity between sentences imposed for trafficking in crack and powder cocaine, one that tends to produce racially skewed punishment? asked Senator Richard J. Durbin, Democrat of Illinois.
“It is a policy issue, quintessentially,” Ms. Kagan responded. “There’s nothing that the Supreme Court or that any court can do about it. It’s really one that Congress has to decide.”
Like judges, members of Congress also swear to uphold the Constitution, Ms. Kagan said, and they should not look to the courts to save them from their folly.
“They ought to be the policymakers for the nation,” Ms. Kagan said of legislators and other elected officials. “The courts have an important role to play, but it’s a limited role. It’s essentially sort of policing the boundaries and making sure that Congress doesn’t overstep its role, doesn’t violate individual rights or interfere with other parts of the governmental system.”
Asked about the criteria the Supreme Court should use in deciding which cases to hear, Ms. Kagan listed three, including conflicts among the lower courts and matters of surpassing significance. But she placed special emphasis on the third one: when a lower court has struck down a federal law.
“That’s a serious thing, to invalidate an act of Congress,” Ms. Kagan said. “You know, for the most part we want to defer to the legislative branch, to the decisions of our elected branches. So that’s such a serious thing that the court is going to take that case.”
Ms. Kagan explained that much of her defense as solicitor general of the Bipartisan Campaign Reform Act of 2002, part of which was struck down in Citizens United v. Federal Election Commission in January, was based on factual findings in The Congressional Record.
Congress, she said, knows how money can warp politics, and she suggested that the Supreme Court should have paid more deference to that expertise.
Mr. Coburn’s question about mandatory fruits and vegetables was, of course, a transparent proxy for the recent health care legislation, and Ms. Kagan knew that.
She gave only a general answer about the limits of Congressional power to pass laws mandating behavior under the Constitution’s commerce clause. But she did say that the Congress had substantial power in another sense.
“The principal protector against bad laws is the political branches themselves,” she said.
A version of this news analysis appeared in print on July 2, 2010, on page A16 of the New York edition.
I understand she has good reviews overall. I too hope she lives up to it.
She does seem to be saying the right things. I hope her words equal her actions. Hopefully not a liberal ploy of dropping the radical pose to achieve the radical ends. I pray she is a strict Constitutional Constructionist and not an activist legislator hiding beneath black robes. Some feel the Constitution is there to twisted and contorted to meet their political ends. They seem to forget that if a problem arises with the Constitution, we do have an amendment process. I see the Constitution as a 4 corner document.
I burst into laughter reading the part where she put more responsibility on Congress to pass sensible laws and to stop their favorite habit of writing legislation so ambiguous that is left to the courts to interpret their meaning. A Congressman responsible for his legislative behavior, what a joke!! Those clowns will be lining up at their therapist's door!
I burst into laughter reading the part where she put more responsibility on Congress to pass sensible laws and to stop their favorite habit of writing legislation so ambiguous that is left to the courts to interpret their meaning. A Congressman responsible for his legislative behavior, what a joke!! Those clowns will be lining up at their therapist's door!
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