The Kagan Hearings
It is a truism that Supreme Court confirmation hearings give us only a limited insight into the constitutional philosophy of the nominee in question. But it is also true that they can offer valuable insight into how Democrats and Republicans view constitutional law and history. The split goes deeper than spats over who's an activist and who's a strict constructionist. A confirmation hearing can actually give us a pretty good sense of each party's sense of the sweep of constitutional law, history, and vision. And the difference between those two visions was very much in evidence this week.
"The arc of the moral universe is long, but it bends toward justice," Martin Luther King Jr. famously said. Senate Republicans apparently disagree. They spent the past few days explaining that in fact American justice and freedom have been on a long, slow decline and will come to an abrupt end very soon, at a rutabaga. Senate Democrats are more hopeful. They think things are generally trending positively. The contrast between the two visions could not have been sharper. In that spirit, I am pleased to offer this Brief Summary of Constitutional History According to the Senate.
According to Sen. Chuck Grassley, R-Iowa, our constitutional rights predate the Constitution itself. Or one of them does, anyway. On the second day of the hearings Grassley asked Elena Kagan whether the Second Amendment's right to bear arms is in fact a "fundamental right" that was "endowed by our creator." Kagan appeared baffled and said she hadn't given this question much thought. Luckily, Sen. Tom Coburn, R-Okla., was there to clarify the issue, saying that things really got cooking for American freedoms around 1765, when the great British legal scholar Sir William Blackstone wrote about the right to bear arms.
Fast forward 189 years to Brown v. Board of Education. The main problem seems to be former Justice Thurgood Marshall, who was invoked by Republican senators 35 times on the opening day of the hearings as an example of "a judicial activist" (Sen. John Cornyn, R-Texas) and someone whose legal views "do not comport with the proper role of a judge or judicial method" (Grassley). Evidently, American justice and freedom suffered a crushing and enduring blow at the hands of the man who argued Brown.
But if you really want to understand the Senate Republicans' view of constitutional decline, you need look no further than Coburn's heartfelt paean to the summer of 1980, when, in his telling, American freedom made a quick run to the 7-11 and never came back. On Day 2 of the hearings Coburn scored a huge win for Fox News by posing this hypothetical to Kagan: If Congress passed a law requiring Americans "to eat three vegetables and three fruits, every day," he asked, "does that violate the Commerce Clause?" The right answer to that question would have been "Yes—yes it does, senator!" even if it was not quite accurate. But Kagan is a lawyer, the question unexpected, and so she hedged and dodged. In a hearing with almost no gotcha moments, it was an opportunity for Republicans to paint the nominee, the Democratic Congress, and the president himself as proponents of some kind of forced-vegetablist nanny-state that—especially with the passage this year of health care reform—is one step removed from tyranny.
So much was the prospect of mandatory mushrooms causing heartburn for Coburn that he devoted his second round of questioning on the third day of the hearings to an elegy for American freedoms. As he put it to Kagan: "Have you ever contemplated the idea of what your freedom was like 30 years ago and what it's like today?" She has not, Kagan said.
"A lot of Americans are losing confidence because they're losing freedom," Coburn explained. And apparently it is all about the vegetables. "Do you recall I asked you about the vegetable question yesterday," he said. "That's on the front of a lot of people's minds, not vegetables, health care. You know where I was going. The very fact that the government is going to have the ability to take away, mandate what I must buy or must not buy—a very large loss of freedom." Immediately he had terrified many Americans into believing that they might someday need to take up arms against the artichokes.
It fell to Sen. Amy Klobuchar, D-Minn., to provide the Democratic counternarrative about the arc of moral justice in America. Klobuchar was so astonished by Coburn's claim that Americans are on the brink of tyranny in 2010 that she hopped onto Google and determined that in 1980, Blondie's "Call Me" topped the charts and there were no women on the Supreme Court. Noting that whether freedom had been lost in the 30 years since is "all in the eyes of the beholder," Klobuchar pointed out that in 1980 there were also no women in the Senate and no women on the Senate Judiciary Committee. (She later corrected her statement to note that there was in fact one woman in the Senate.) She then asked Kagan whether maybe women, at least, are a bit more free now than they were 30 years ago. Kagan agreed.
Klobuchar probably could have added that more Americans are "more free" today because of Thurgood Marshall, too. And she could have added this partial list of congressional statutes and Supreme Court decisions that have arguably made a lot more Americans freer since 1980: the Civil Rights Restoration Act (1988), Hustler Magazine v. Falwell (1988), Texas v. Johnson(1989),the Americans with Disabilities Act (1990), the Civil Rights Act of 1991, National Voter Registration Act (1993), the Religious Freedom Restoration Act (1993), United States v. Lopez, (1995), Rosenberger v. University of Virginia(1995),United States v. Virginia (1996), Romer v. Evans (1996), Lawrence v. Texas (2003), Roper v. Simmons (2005),the Voting Rights Reauthorization and Amendments Act (2006), Georgia v. Randolph (2006), D.C. v. Heller (2008), the Lily Ledbetter Fair Pay Act (2009), Graham v. Florida (2010), and McDonald v. City of Chicago (2010).
I'm going to go on a limb here and suggest that for some Americans who cannot afford health care, health care reform might make them more free, too. Maybe Coburn realizes that when he spent 20 minutes explaining to Americans that they are less free today than they were in 1980 because of the bill's health insurance mandate, he wasn't talking to all of them. Reasonable people can differ about the constitutionality of the mandate, and they will. But reasonable people could probably also agree that we have more political, religious, expressive, and other freedoms today, and more equality for gender, race, disability, age and sexual preference than we did when Elena Kagan was 20. It's not perfect. But before you throw too many tomatoes at the court and Congress, you might want to toss a thanks their way as well.
Having dragged on at least two (and possibly three) days longer than they needed to, these hearings probably won't change anyone's minds about the progress of moral justice in America. People who believe the courts and the Congress are intent on stripping away basic freedoms and imposing a Communist regime of forced vegetables on every man, woman, and child will probably persist in that belief. People who believe Americans have made slow but steady progress toward equality and fairness in America will be happy there is a third woman on the court. Perhaps all of us can agree, however, that this sort of big melodramatic debate about "freedom" is not the best way to confirm future justices. And then all of us should go back to eating our vegetables. But only if we want to.
Dahlia Lithwick writes about the courts and the law for Slate.