The conventional wisdom is that the Elena Kagan hearings are a bit of a snoozefest. People complain that the process is useless because nominees refuse to disclose how they might rule on particular cases. In fact, in terms of divining Kagan's legal philosophy, the hearings have been quite instructive. Kagan has been rather forthcoming about her legal philosophy, and it's one people should recognize, because it's similar to the political philosophy claimed by the president.
When asked directly, Kagan responded, "I have no grand theory of constitutional
interpretation. I am more pragmatic." This in fact is a "grand theory of constitutional interpretation"; the defining feature is that it pretends not to be a grand theory of constitutional interpretation. The hearings will continue, and both sides will press their ideological
arguments, but the hearings have, for the most part, already achieved
When asked about the role of "original intent" in interpreting the Constitution, Kagan said, "There are some circumstances in which looking to the original intent is determinative, and other cases in which it is not to be.” On whether or not the text alone is sufficient to reach a decision, Kagan said, "The judges should always look at the text." But she acknowledged that sometimes the text is "subject to one or more interpretations" and that "in some cases the original intent is unlikely to solve the question, because it is unknowable, or it might be because we live in a world [that] is very different than the one in which the framers once lived.” She agreed with conservatives that the Constitution can't be "changed" by the Court, but that "the constitutional law that we live under does develop over time" because "courts are asked to think about how it applies to new circumstances, new problems, things the framers never dreamed of.” Most important, she concluded that there are times when the intent of the framers is at odds with the principles they've established. This is someone who very clearly rejects the dogmatic originalism of the Court's most conservative justices.
That last revelation is significant, because it's the core of all progress on matters of civil rights in this country. When Kagan's mentor, Justice Thurgood Marshall, was winning battle after battle in the courts, he wasn't "changing" the Constitution. He was redeeming the principles established by the framers that the framers themselves were unwilling or unable to follow.
That doesn't mean we know how a Justice Kagan will rule on every issue. Kagan clearly said yesterday that the authority to detain suspected terrorists comes from the 2001 Authorization to Use Military Force, not the president's "inherent" powers under Article II -- as John Yoo would. But that doesn't mean that she would rule the indefinite detention of an American citizen unconstitutional -- it just means that she wouldn't do so on the basis of Article II but might do so under the AUMF. When fighting a war that, Kagan admits, has no defined endpoint, there ultimately isn't much of a difference.
Kagan's "pragmatism" mimics political liberalism in that it doesn't pursue purely dogmatic solutions. Conservatives like to caricature liberalism as always wanting to grow the size of government, but this isn't accurate -- as long as the solution is consistent with first principles, it is comfortable with market solutions when they work, and comfortable with government solutions when markets are inadequate to solve the problem.
Predictably, though, it's like liberalism in one other way: It dare not speak its own name, lest it be recognized as ideological.
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