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:
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
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