Elena Kagan Is Obama’s SCOTUS Pick; Now What?

What do conservatives mean when they speak of “judicial activism”? (Hint: It doesn’t mean overturning clearly wrong legal precedents, nor does it mean overturning laws enacted by Congress that contradict the clear text ofthe Constitution.)

Was the president right to accuse this Supreme Court of giving undue political influence to corporate special interests? (Hint: Not unless you believe there’s a principled reason to give General Electric and Disney the unlimited right to make their opinions heard but not the NRA or NAACP.)

Should judges follow the president’s advice to give special consideration to disadvantaged parties in legal disputes? (Hint: If they do, it’s far from clear that the truly disadvantaged in society won’t be worse off in the aggregate.)

We should focus on these and similar questions as the Senate considers the nomination of Elena Kagan, who — as I expected — was tapped by President Obama to replace John Paul Stevens on the Supreme Court. Notwithstanding her lack of judicial and litigation experience (Kagan almost certainly doesn’t meet what she herself described as the “threshold requirements” of the job), I wouldn’t expect her to follow her own advice and engage with Senators “in meaningful discussion of legal issues.” What we will see is hemming and hawing — and, absent a heretofore unknown revelation, a confirmation. But that doesn’t mean we can’t take advantage of the public’s attention and help to clarify some very important issues.

This piece originally appeared in National Review Online

This piece originally appeared in National Review Online