As the Senate Judiciary Committee begins confirmation hearings today for Supreme Court nominee Elena Kagan, be prepared for many shallow questions from senators and many empty answers from Elena Kagan. These hearings often turn into “vapid and hollow charades” (to quote Kagan) because senators’ questions are based on misconceptions of judging at the Supreme Court. These misconceptions are either sincerely held beliefs, beliefs based on ignorance, or disingenuous devices for hammering the nominee and scoring political points. It could also be a mixture of the three. Confirmation hearings would be much more productive if senators were disabused of two misconceptions.
1. Mechanistic judging: We will hear senator after senator say something to effect of, “We need impartial justices on the Court who will follow the law as it is written and respect precedent. We need strict constructionists, not judicial activists on the Court.” The computer-like, mechanical jurisprudence view of judging — where judges simply apply “the law” to the facts of a given case like a technician — is a straw man, plain and simple, particularly at the Supreme Court level. It is a view of judging that cannot be taken seriously. The Supreme Court takes cases that contain a high degree of legal ambiguity. The justices deal in the gray areas of the law, not the black and white ones. Thus, simply applying “the law” in a straightforward fashion is not possible or realistic at the Supreme Court level. “The law” in a given case — precedent and legal doctrine, constitutional provisions, statutory provisions — is never completely evident and rarely provides a clearly-defined answer to the question in a case. Justices, then, have considerable discretion to use their own judgment to render a legal rationale and interpretation applied to the facts of the case. And guess what, senators? Justices frequently disagree with each other on how certain provisions should be interpreted. Justices also have policy preferences that color their judgment to an extent — they are humans, not computers. This does not mean that law does not matter at all. But since the cases the Court hears contain considerable gray area, which naturally gives justices considerable discretion, they will undoubtedly rely on extra-legal considerations, in addition to legal considerations, to render a decision.
2. The Supreme Court makes policy — get over it! We will also hear senators say something to effect of, “The role of the Supreme Court is to interpret the law, not to make law. Congress makes law and policy; the Supreme Court is not a policymaking institution.” At a constitutional organizational level, this is correct — Congress makes law, the executive enforces the law, and the judiciary interprets the law. But in practice, there is absolutely no doubt that the Supreme Court makes policy. When the Supreme Court strikes down a law as unconstitutional, that is a policy, plain and simple. It is a policy directive with which the other branches, the states, and the American public must comply since it is the law of the land. Judicial review is a vehicle for policymaking, and I doubt any living human being will call for the reversal of Marbury v. Madison. When the Court renders an interpretation of a law via statutory interpretation, that is policymaking. Moreover, as the head of the federal judicial hierarchy, the Supreme Court is tasked with making legal policy for the lower courts in order to guide their decisions. So at this level, the Supreme Court makes policy — there is no getting around it.
To be fair, senators sometimes mean something else when they attack the Court for its policymaking role. They are sometimes referring to justices using the Constitution to “create” rights and liberties that are not clearly enumerated in the text of the Constitution (substantive due process), e.g., the right to privacy, abortion, and so forth. This has some overlap with the first topic above related to charges of judicial activism. Substantive due process — what rights are covered under the 14th Amendment’s “liberty” clause? — is a legitimate topic that is worthy of rigorous questioning (though nominees usually avoid this question). But it should not be lumped in with the notion that the Court inevitably makes policy in the manner that I have described above.
The bottom line: Senators need to realize that justices deal with complicated legal questions that do not contain clearly evident answers. There is often a legitimate legal rationale supporting both sides of a case, which is precisely why the Supreme Court is deciding the case. The Court is tasked with making legal policy in some form or another. The justices have to decide the case, and they have to provide a legal rationale for the given case that will serve as legal guidance for the lower courts and for future Supreme Court cases. It is extremely counterproductive for senators to continue propagating misconceptions about the Supreme Court in Senate confirmation hearings. If they could move beyond these misconceptions, perhaps the words “vapid,” “hollow,” and “charade” could be removed as descriptors of the process.