Is Kagan a “Progressive”

June 29, 2010 6:19 am

Andrew Pincus Blogs Live

Ranking Republican Senator Jeff Sessions focuses first on constitutional interpretation. He gets Kagan to reiterate that the only way to change the Constitution is through amendment, but she points out that “the constitutional law we live under does develop over time.” But she says that means that judges have to apply the Constitution to new situations, and that they do that via the process of constitutional interpretation.

Sessions then talks about a new movement to revive “legal progressivism” which says has its origins in the 1930s movement criticizing Supreme Court decisions that held unconstitutional key elements of President Franklin Roosevelt’s New Deal. He says that it is an effort to try to change the meaning of the Constitution.Sessions points out that former White House Counsel Greg Craig described Kagan as a “progressive” and that Ron Klain, Vice President Biden’s chief of staff, labeled her a “legal progressive.” Kagan says she doesn’t know what that label means, but that her “politics must be separate from my judging” and that “judging about considering the case, listening to arguments and then considering how law applies to the case, not how personal views or political views would direct you. Sometimes it’s hard to determine what the law says. But that’s the question.”

Legal progressives will be happy at the attention they are receiving.

Prior to 2000, debate about constitutional interpretation and other significant legal issues was dominated by the Federalist Society, a group founded in the 1980s to promote discussion of a conservative approach to these questions. In the wake of the Bush v. Gore decision, some progressive legal academics founded the American Constitution Society, designed to be a counterweight to the Federalist Society (disclosure: I a member of the Constitution Society’s board). Conservative Justices have appeared at Federalist Society events, just as more liberal Justices have appeared at American Constitution Society events. Like the Federalist Society, the ACS has sponsored events and publications relating to a more progressive approach to questions of constitutional interpretation and statutory construction. Apparently they have gotten some attention on Capitol Hill.

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