Tuesday, July 20, 2010


The Senate Judiciary Committee voted to move Solicitor General Elena Kagan's nomination for the Supreme Court to the Senate. All but one Republican on the committee(Senator Lindsey Graham of South Carolina being the exception) voted against sending her nomination to the floor. The Democrats, outgoing Senator Arlen Specter (D-PA) included, voted for Kagan.

Senator Graham justified his vote by employing the same rationale his colleagues used when they were voting for George W. Bush's nominees to the Supreme Court. The senate, Graham said, should defer to the president with respect to his judicial nominees' political philosophy and base their decision to confirm (or withhold their confirmation) on the quality of that candidate's qualifications and character. I guess the senator from South Carolina deserves some credit for adhering to his philosophical outlook when it mandates a vote for someone's judicial outlook he does not like, particularly when his colleagues on both sides of the aisle decide whether they should base their argument for a simple up or down vote or a filibuster on the political affiliation of the president doing the nominating.

I don't necessarily believe, however, that the senate owes the president this deference if and when, as is the case, he or she is nominating someone for a life-time appointment or in cases when the person will be in a position of power long after the president is required to step down from office.

Supreme Court justices have the power to overturn laws as well as judicial precedents they consider unconstitutional. A Congressional act or executive order can mitigate the ramifications stemming from a Supreme Court decision but it cannot overturn a decision reached by the Supreme Court.

The senate must, therefore, carefully scrutinize those who the president seeks to elevate to the Supreme Court and, for that matter, to the Courts of Appeal since most constitutional issues are not heard by the Supreme Court. We should know how the justices interpret the liberty and equal protection clauses in the Fourteenth Amendment. Does the nominee believe that the liberty clause should be interpreted broadly? Are the abortion rights many women take for granted protected by the liberty clause? Does the liberty clause guarantee us a right to privacy? we have a right to privacy? Can gays expect the Fourteenth Amendment's equal protection clause to apply to them if and when they face discrimination in the workplace? What does the First Amendment's religious establishment clause protect us from? Does it protect our children from indoctrination in the schools? Can an American citizen be held as a prisoner of war for an indefinite period of time even if he or she wasn't caught on an easily definable battlefield? These questions, regrettably, though "settled" by precedent, are regrettably still debated today.

During the hearings, Elena Kagan said nothing which suggests she will vote to overturn this court's civil rights precedents and she has given no indication that she would roll back our civil rights or overturn legal jurisprudence upholding abortion rights. I see at this time no reason why she can't be confirmed but I do object to the reasoning employed by the Republican senator from South Carolina. We have every right to see for ourselves what a Supreme Court nominee would consider when he or she eventually rules on questions concerning our rights as American citizens.

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