Kagan on Supreme Court Confirmations

Solicitor General Elena Kagan, reportedly a top contender for the Supreme Court, wrote a 1995 book review in which she reflected on President Reagan's failed nomination of Robert Bork:

The debate focused not on trivialities ... but on essentials: the understanding of the Constitution that the nominee would carry with him to the Court. Senators addressed this complex subject with a degree of seriousness and care not usually present in legislative deliberation; the ratio of posturing and hyperbole to substantive discussion was much lower than that to which the American citizenry has become accustomed. And the debate captivated and involved that citizenry in a way that, given the often arcane nature of the subject matter, could not have been predicted. Constitutional law became, for that brief moment, not a project reserved for judges, but an enterprise to which the general public turned its attention and contributed...

[T]he real "confirmation mess" is the gap that has opened between the Bork hearings and all others (not only for Justices Ginsburg and Breyer, but also, and perhaps especially, for Justices Kennedy, Souter, and Thomas). It is the degree to which the Senate has strayed from the Bork model. The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy--muted, polite, and restrained--but all that good order comes at great cost.

The Los Angeles Times reports:

Kagan declined to comment on the article through a spokeswoman.

Last year, when asked about the article in her Senate confirmation hearing, Kagan tried to explain away her statements as the brash words of a young judiciary committee staffer when it was chaired by then- Sen. Joe Biden.

"I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought," she replied.

At the time that she wrote the article, Kagan was a 35-year-old professor of law at the University of Chicago.

The Flag in School

Our chapter on civic culture discusses the powerful symbolism of the American flag. In a California high school, several students had to go home because they were wearing flag clothing on Cinco de Mayo:

In our chapter on civil liberties, we discuss Tinker v. Des Moines School District 393 U.S. 503 (1969). In this case, students faced suspension for wearing black armbands in protest against the Vietnam War. By 7-2, the Supreme Court held:

1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive, and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. Pp. 393 U. S. 505-506.

2. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment. Pp. 393 U. S. 506-507.

3. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.

Today is the National Day of Prayer

On April 30, the president issued the customary proclamation declaring May 6 as a national day of prayer:

Let us remember in our thoughts and prayers those suffering from natural disasters in Haiti, Chile, and elsewhere, and the people from those countries and from around the world who have worked tirelessly and selflessly to render aid. Let us pray for the families of the West Virginia miners, and the people of Poland who so recently and unexpectedly lost many of their beloved leaders. Let us pray for the safety and success of those who have left home to serve in our Armed Forces, putting their lives at risk in order to make the world a safer place. As we remember them, let us not forget their families and the substantial sacrifices that they make every day. Let us remember the unsung heroes who struggle to build their communities, raise their families, and help their neighbors, for they are the wellspring of our greatness. Finally, let us remember in our thoughts and prayers those people everywhere who join us in the aspiration for a world that is just, peaceful, free, and respectful of the dignity of every human being.

As noted earlier, a federal judge recently ruled that a statutory day of prayer is unconstitutional. (The ruling did not apply to presidential proclamations.) According to Gallup, however, relatively few Americans have a problem with the idea:

Words and Politics

In our chapter on civic culture, we note that Americans tend to dislike the "socialist" label, and a new study from the Pew Research Center provides confirmation:

The rejection is far from unanimous, however. And the word "capitalism" gets a negative reaction from a substantial number. The latter finding may indicate another strain of American civic culture, namely a reformist distrust of concentrated power.

The study also confirms an observation in our chapter on political parties: Republicans and Democrats tend to have very different belief systems.

A large majority of Republicans (77%) react negatively to “socialism,” while 62% have a positive reaction to “capitalism.” Democrats’ impressions are more divided: In fact, about as many Democrats react positively to “socialism” (44%) as to “capitalism” (47%).

Deliberation in the Senate

In an article in PS, Frances E. Lee analyzes changes in the Senate's deliberative character:

The weakening of the Senate’s deliberative processes—routine obstruction hamstringing the body’s ability to consider and pass measures, loss of committee expertise, avoidance of conference committees, ad hoc decision making in leadership offices— makes Congress less serious and substantive as a policymaking institution. Executive branch officials dealing with complex policy issues can be forgiven if they seek out workarounds rather than engage with an institution that has become harder to mobilize while devoting more legislative resources to politicking and less to fostering policy expertise. Perhaps the Obama administration, for example, would be better advisedto start working with the Environmental Protection Agency to find ways to regulate carbon emissions under existing authorities rather than depend on the Senate to pass sweeping cap-and-trade legislation. Although internal congressional reforms and institutional adaptations may eventually help to counter these trends, it is also possible that the future of the Senate is to become progressively more of a veto player and a reactive/review body rather than an independent affirmative policymaker.

Long Laws

Why are congressional bills so lengthy? John Steele Gordon suggests one cynical explanation: to hide their actual content by rendering them unreadable. He adds:

But there are two other reasons. One is that a vast bill makes it easier to sneak in clauses that go unnoticed until they are law. If the best place to hide a book is in a library, then the best way to hide a favor for a contributor or a quiet little power grab is in a bill 2,000 pages long. The Washington Post recently reported that the financial reform bill would significantly increase the power of the Federal Trade Commission to regulate the Internet, something that has nothing to do with financial reform.

The second reason is Washington’s increasing fascination with global reform rather than piecemeal reform. Only touchdowns, it seems, are now allowed in the game of political football; moving the ball down the field just won’t do. The health-care debate would have been a lot shorter and a lot less politically divisive had both sides simply agreed to enact those reforms that a substantial majority of each house agreed with — such as of insurance abuses — and then saw what else was needed. Regulating derivatives would be a piece of cake if it were not tied to “financial reform” in general.

President on Name-Calling and Democratic Deliberation

At the University of Michigan, President Obama said that polarizing rhetoric can hurt deliberation:

Now, we’ve seen this kind of politics in the past. It’s been practiced by both fringes of the ideological spectrum, by the left and the right, since our nation’s birth. But it’s starting to creep into the center of our discourse. And the problem with it is not the hurt feelings or the bruised egos of the public officials who are criticized. Remember, they signed up for it. Michelle always reminds me of that. (Laughter.) The problem is that this kind of vilification and over-the-top rhetoric closes the door to the possibility of compromise. It undermines democratic deliberation. It prevents learning –- since, after all, why should we listen to a “fascist,” or a “socialist,” or a “right-wing nut,” or a left-wing nut”? (Laughter.)

On August 6, 2009, the president said:

I don't mind, by the way, being responsible; I expect to be held responsible for these issues because I'm the President. (Applause.) But I don't want the folks who created the mess -- I don't want the folks who created the mess do a lot of talking. I want them just to get out of the way so we can clean up the mess. (Applause.) I don't mind cleaning up after them, but don't do a lot of talking.