Senator Jon Kyl, one of the most adept questioners on the Judiciary Committee, takes Kagan through a series of issues relating to her approach to judging. He begins by asking about the President’s famous comment of last year that judges should have “empathy.”
Rather than rejecting the idea, Kagan explains what she would do. She says that a judge’s job is to consider fully each party’s argument, and in particular to understand completely how the facts and legal issues look from each party’s perspective–but then to apply the law.
Kyl then asks whether Kagan agrees with the statements by some Democratic Senators yesterday that the Court favors corporate interests and whether she would “fight for the little guy.” Kagan says that courts are level playing fields, and agrees with a statement made by Chief Justice Roberts during his confirmation hearings that he would rule for the “big guy” in a case if the Constitution says to, just as he would rule for the “little guy” if that’s what the Constitution provided. Certainly the right answer.
Kyl then tries to get at the same idea by quoting from an article that Kagan wrote about Justice Marshall that talked about his view that courts had a special responsibility to protect the unprotected. She makes a good and important point: courts have a different role with respect to persons ignored by the political branches–they must treat everyone with respect and accord the same attention to claims asserted by the powerless and the powerful. Compared to the political branches, therefore, courts do play a special role when it comes to the disadvantaged and the voiceless.
He then asks about another comment attributed to Justice Marshall about judging, that one should “do what you think is right and let the law catch up.” Kagan says that given Justice Marshall’s career, and what he accomplished by refusing to take the law as it was, that view was understandable. (She also says she never heard the Justice say that.) Of course, Marshall’s comment can be reframed to fit current thinking: judges can and should reconsider precedent when appropriate under the relevant tools of constitutional interpretation. Senator Kyl likely would not criticize the Court’s decision in last year’s Second Amendment case, which did just that. Presumably the proponents of gun owner’s rights feel that the law has now “caught up” with what is right.
Kagan sidesteps a question about whether the Court is “too activist,” saying that she wouldn’t want to characterize the current Court because “I hope to join it.” Kyl: “And they say you’re not political.”
Kyl also brings up comments in some memos Kagan wrote when she was a law clerk to Justice Marshall (note: one of few downsides of serving as a Supreme Court law clerk is that the former clerk’s musings as a freshly minted young lawyer come back to haunt him or her decades later). The comments involve references to the possibilty that a decision to grant review in a particular case could lead to a decision making “bad law.” Of course, Justices in practice do consider that question in deciding whether to grant review (a vote to deny review in such a situation is called a “defensive denial”), but Kagan avoids the issue by talking in general terms about the factors she would consider in deciding when the Supreme Court should review a lower court decision.
Finally, Kyl asks about a case involving Arizona in which the Court granted review yesterday (the case is Chamber of Commerce v. Candelaria). The issue is whether the federal immigration laws make invalid (“preempt” in legalspeak) an Arizona law imposing impose sanctions on employers who hire illegal aliens and requiring employers to participate in a federal program for verifying individual’s immigration status. The Supreme Court asked the Solicitor General’s office to file a brief addressing whether the Court should grant review. The SG’s brief (which was filed after Kagan was nominated and was not signed by her) advised the Court to grant review of one of the questions raised by the party seeking review; the Court yesterday granted review of all three questions raised.
Kyl asked why the government supported review when there was no conflict among the lower courts on the issue. Kagan said that the issue was important because it was arising in a number of places around the country. Not surprisingly given the political saliency of immigration issues, Kagan made clear that this was a decision based on the federal government’s interests and did not reflect her own views.
