TODAY is the start of the Senate confirmation hearing on the President’s appointment of Elena Kagan. If confirmed, she will replace retiring Supreme Court Justice John Paul Stevens.
This is mostly a copy of what we posted here: Open Letter to Sonia Sotomayor, but we’re going to repeat ourselves because it’s still relevant.
We assume the Republicans will be questioning Kagan on her lack of judicial experience, her banning military recruiters from the Harvard Law School campus, and the other hints of what may be extreme views. But we’re concerned here with something we believe to be far more important.
What you’re about to read is the one question we would ask Elena Kagan if we were a member of the Senate Judiciary Committee. We don’t know what questions will be asked, but our question is the one that ought to be asked, so we’re presenting it in the form of this open letter. To wit:
Miss Kagan:
During previous confirmation hearings, many questions have been put to nominees about how the Constitution should be interpreted. Such questions frequently use phrases like “strict construction,” “liberal construction,” “original intent,” “living document,” and “judicial activism.” Before we ask your views on constitutional construction, please consider the following excerpts from the plain wording of the Constitution and the Bill of Rights. We’ll use bold to emphasize a few portions.
Article. VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article. VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Now then, considering the oath of office that you have previously taken, and will take again if your nomination is confirmed, do you agree with the following propositions?
1. The Constitution, by its terms, is the “supreme law of the land,” and is unquestionably binding on all members of the judiciary.
2. The Constitution, in Amendments IX and X, contains its own rules of construction, and those rules are binding on the judiciary.
3. The list of rights enumerated in the Constitution is not to be construed as a complete list.
4. The list of powers delegated to the federal government is to be construed as a complete list.
5. The issue of constitutional construction is not a matter of personal choice. All judges are bound by oath to use liberal construction regarding our rights, and strict construction with respect to the federal government’s powers.
6. Anyone appointed to the judiciary must agree with the foregoing, or be deemed unqualified to hold office.
If you unreservedly agree with these propositions, please say “Yes.” Nothing else is necessary. But if you disagree with any of them, or if you have any reservations whatsoever, please explain.
/s/ The Curmudgeon
Copyright © 2010. The Sensuous Curmudgeon. All rights reserved.
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The Sensuous Curmudgeon 
I’ve been arguing for exactly this for years.
Longie says: “I’ve been arguing for exactly this for years.”
Frustrating, isn’t it?
SC, there’s something you didn’t bold which is very important:
all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
When the Supreme Court says that we have let Americans be tried by the International Criminal Court, and they won’t have the legal protections that American citizens in American courts, Elena Kagan will be a vote for that and this passage is why.
Every time OUR laws are adjusted, without our input, to be in conformity with what the laws are in other countries, this passage is the justification, and Elena Kagan will be a vote for that.
Gabriel Hanna says:
If a treaty gives some international tribunal jurisdiction, and takes it away from our courts, then you’re right. But we have no such treaty. As far as I know, places like the World Court are voluntary — it up to the parties to submit a case to them. It’s not up to the Supreme Court.
Ms. Kagan’s answer:
“Over the course of the past 150 years, a body of law has grown, restricting the liberties of its citizens in exchange for the perception of protection. As participants in the legal and judicial system, judges and lawyers have agreed that this body of law is far more important than some crumbly old bit of parchment. In order to preserve the power of our judicial system, we cannot allow a reading of that parchment in the manner that you suggest. And there’s about 96 other people in the Senate who have gained their financial security and social privilege through that system. So, with all due respect, my balancing of these imperatives must come in favor of the interpretations that have made me, the fellow who nominated me, and the people who will be voting for me rich and powerful. Next question?”
As is your usual, well said, Curmy, as it was when addressed to Sotomayor.
Can we get this into the hands of a reasoned GOP senator on the Judiciary committee?
SY says: “Ms. Kagan’s answer:”
That sounds familiar. Oh yes, it’s from here: The Logic Is Undeniable.
retiredsciguy asks:
Here they are: Senate Judiciary Committee. Go for it.
TC, that’s apropos, but the robots didn’t get $500 an hour with a gun to your head.
“a reasoned GOP senator”
That was the single funniest thing I’ve read all day!
Not Everyone In Texas Is Daft:
http://scienceblogs.com/dispatches/2010/06/court_upholds_denial_of_icr_de.php
SY:
|“a reasoned GOP senator”
|
|That was the single funniest thing I’ve read all day!
Oh — you think that’s funnier than “Reasoned Democratic Senator?” I originally said GOP because I’d really like to see this question asked of Kagan. Fat chance any Democrat would ask it.
Hey, Al Franken’s on the Judiciary Committee! Maybe he’ll ask this question! (Now THAT’S funny!)
‘Oh — you think that’s funnier than “Reasoned Democratic Senator?”’
No, not at all.
Why is “reinterpreting the constitution over time” so dangerous?
Longie says:
The Red Guards know where you live. And they know how to deal with trouble-makers.
Well I have forwarded the link and text of the question to Amy Klobuchar. I will post here reply.
Thanks, DevoBill. Let us know if there’s any response.
Dear DevoBill,
Thank you for contacting me about the nomination of Solicitor General Elena Kagan to be Associate Justice on the Supreme Court of the United States. I appreciate hearing from you on this important nomination.
Attending confirmation hearings and carefully questioning judicial nominees are among my greatest responsibilities as a United States Senator. I take this role very seriously.
Solicitor General Elena Kagan is a superbly qualified nominee who is regarded as one of the nation’s leading legal minds. Importantly, she is from outside the “judicial monastery,” and so will bring a diverse set of experiences to the Supreme Court. Solicitor General Kagan has a keen ability to bring together people from different backgrounds and beliefs. She has also been an unwavering advocate for the rights of all Americans.
Before the Supreme Court hearings, I convened a roundtable of legal experts from throughout Minnesota, and used that discussion to help inform my questions for the Solicitor General. I am particularly concerned with how Supreme Court decisions affect the lives of hard-working Minnesotans.
The Senate Judiciary Committee held hearings on Solicitor General Kagan’s nomination during the week of July 28. As a member of the Judiciary Committee, I had the opportunity during the hearings to question Solicitor General Kagan on her views and judicial philosophy. I asked her questions about companies that force employees into arbitration, media consolidation and the proposed Comcast/NBC Universal merger, the recent Citizens United Supreme Court decision allowing corporations to spend money in elections, and the importance of understanding Congress’ intent when interpreting statutes.
After attending the confirmation hearings and carefully assessing Solicitor General Kagan’s qualifications and judicial philosophy, I am pleased to support her nomination. I look forward to a quick confirmation process.
Thank you again for contacting me, and please do not hesitate to do so in the future on this or any other matter of concern to you.
Sincerely,
Al Franken
United States Senator
DevoBill, you wrote to Al Franken? That was a grand waste of time.
I wrote them both. No response yet from Amy K.