Research

Yesterday, we outlined some tough questions that President Obama’s Supreme Court nominee, Elena Kagan, will have to answer, including whether or not she still believes that the Court’s primary mission is to “show a special solicitude for the despised and disadvantaged,” a direct line from her scant legal writings.

Americans would be concerned that a justice like Kagan would be partial to whomever she felt “empathy” for. But President Obama made it very clear that yesterday how Kagan would vote in future cases, something that The Washington Post’s editorial board said was inappropriate:

Ms. Kagan must not be pinned down on how she would vote in future cases. Mr. Obama came close to such a breach in his introduction of his nominee, suggesting that she would continue to fight for "ordinary citizens" against "unscrupulous corporations." Justices should make no such promises and should decide each case on its merits.

As we pointed out yesterday, the question for Kagan is whether she believes in a so-called ‘modern Constitution’ shaped by activist judges pursuing personal political agendas or whether she believes in basing judicial decisions on the rule of law. As former Attorney General Ed Meese observed yesterday, Kagan could fall into the former rather than the latter:

Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the “despised and disadvantaged.” The problem with this view—which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law–is that it allows judges to favor whichever particular client they view as “despised and disadvantaged.” The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws.

It’s clear that her scant legal writings raise serious questions about her potential judicial temperament.