Senator Scott Brown has been in the news for his opposition to Supreme Court nominee Elena Kagan. Brown said he opposed Kagan because of her lack of relevant experience. He said he would have been more comfortable if she had greater experience as a judge, or more years of practical courtroom experience. This struck a lot of people as political cover. I suppose that’s understandable.
What’s funny is the idea that Scott Brown takes a calculated assortment of views that he might not really believe, when I sincerely support the majority of those same views with plenty of reasons and real beliefs. I may be totally wrong, but I have reasons.
Look at Kagan. Let’s assume Van Susteren is correct. Senator McConnell told Brown he had to vote against Kagan, and Brown was stuck trying to find a reason that would sound credible, but wouldn’t offend the forces back home. I could find more politically and philosophically satisfying reasons than he did:
I’d say she was too evasive in the hearings, and her past work as a political operative is troubling. While she has shown she is smart, and her credentials are generally quite impressive for government work, it’s not clear she is a fit for this particular elite position. I don’t feel we learned enough about her. Without being able to examine her approach more, we cannot be sure she is qualified.
Here is my thinking behind that:
Kagan was on the record saying nominees shouldn’t evade questions, but she did when it was her turn. Not only was it a contradictory audition for a profession predicated on consistency and fairness, but I think it’s bad in itself. While some jurists are much more rigorous, thoughtful, fair and sincere than others, the ultimate yardstick of any Supreme Court decision is political ideology. Does anybody prefer a justice with whom they don’t share political beliefs? It’s fine for liberals to say that Scalia is smart, or conservatives to say so about Souter or Stevens. But if that’s all they are, it makes them good columnists, not good judges. Most people cannot consider a person “just” unless they share views on questions of political philosophy. I think that’s because our Constitution doesn’t set up a legal framework as much as a mirror that, to a large extent, reflects to everyone their intuitive preferences for American life.
With a Constitution that often says too little on contemporary questions, our Supreme Court justices bat clean-up in our political process equipped with little more than their political views. Until any justice suffers even momentary tension between political views and legal philosophies, until they learn how to say “I don’t know,” and until any of them admit this problem exists, we need to stop letting nominees treat the Senate that way.
But at the same time, I’m not saying we should submit to a full politicization of the court, and appoint Rahm Emmanuel and Dick Cheney. Remember, those guys are smart too, and they have marvelous resumes. Actually, I think we need justices who can enjoy political views on all sides (even if they ultimately choose only one on each issue), who can develop legal ideologies separate from their political ones, and who don’t play argumentative games in their opinions. We need people who are experts in the law and philosophy, and I don’t think that’s Kagan. I think she’s more of an operative.