In their opening statements today in the confirmation hearings of nominee Elena Kagan for the Supreme Court, liberal Senators have taken to arguing that a Justice’s job is not to “call balls and strikes.” Most conservatives rightly believe the law should govern, not judges, and that Supreme Court Justices should interpret the law as it is written. Conservatives have therefore promoted the “balls and strikes” analogy ever since then-Judge John Roberts used it during his confirmation process before becoming Chief Justice. Roberts said that, if confirmed, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
Liberal Senators are attacking this powerful analogy because it does a terrific job of capturing the objectivity and impartiality that a judge in America should always maintain. A Supreme Court Justice should diligently avoid inserting himself or herself into the game to try to ensure that one team or the other (i.e., either party before the Court) wins. A judge should always ensure that both teams conduct themselves according to the existing rules of the game – that is, according to the law.
While denigrating the “balls and strikes” standard, the statements by Senators Diane Feinstein (D-CA), Sheldon Whitehouse (D-RI), Herb Kohl (D-WI), Russ Feingold (D-WI), and Benjamin Cardin (D-MD) also played on populist prejudices. They over-simplified and trivialized Supreme Court cases as pitting “real people” with “real stories” against (presumptively unjust and exploitative) businesses and other, unspecified “powerful interests.”
In doing so, these liberal senators are echoing President Obama’s repackaged “empathy” standard for judges. Before nominating Sonia Sotomayor, President Obama emphasized that, in his view, justice does not focus on the law and legal theory, but what he called “the daily realities of people’s lives”: “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”
As Senator Jon Kyl (R-AZ) pointed out in his opening statement today, Sotomayor “explicitly rejected the ‘empathy’ standard.” Obama thus had to reformulate his rhetoric and now refers instead to “powerful interests” that “drown out the voices of ordinary citizens.” He says he wants a nominee with “a keen understanding of how the law affects the daily lives of the American people.” The liberal senators are doing little more than reciting the Obama administration’s talking points.
Senator Kyl also recounted some of Kagan’s statements echoing Obama’s “empathy” standard. In a tribute to activist Supreme Court Justice Thurgood Marshall, for example, Kagan praised Marshall for his view that the role of the Court is “to protect the people who went unprotected by every other organ of government . . . . The Court existed primarily to fulfill this mission.” Said Kyl, “This sounds a lot like what President Obama is saying now.”
Echoing retired activist Supreme Court Justice Souter’s recent comments, Senator Feingold said that many questions of the law “inhabit grey areas,” thus requiring judges and Justices to dive in and impose order where chaos supposedly exists. The problem with such views is that liberal activist judges see – and fabricate– “grey areas” even where the Constitution and existing law are black and white.
Senator Jon Kyl (D-AZ) pointed out that Justice Marshall characterized his judicial activism in this manner: “You do what you think is right, and let the law catch up.” Like other liberal activist judges, Marshall believed that as a Supreme Court Justice he should follow his own lights and own agenda, not the law. The law, inconveniently, is often contrary to what any particular judge might want it to be. Unlike those Justices who are committed to upholding the rule of law, liberal activist judges choose to impose their own will and decide cases according to their own personal views.
Kyl detailed instances in which Kagan demonstrated that she shares Justice Marshall’s activist view of the Constitution and the law. After reviewing the filings in one case, Kagan advised Marshall to vote for the Court to hear the case because, she wrote, “it’s even possible that the good guys might win on this issue.” Kyl expressed justifiable concern that Kagan was advising a Supreme Court Justice based on her prejudices about who she deemed to be the good guys and the bad guys in the case.
Most of Kagan’s legal experience has been in political positions. Her documents demonstrate that in those positions and as a law clerk in the Supreme Court she approached issues as a highly political lawyer who frequently wanted to change the law more than she wanted to see it enforced.
Having been nominated by a hyper-political and -partisan president with a penchant for picking the winners and losers in all spheres of American life, Kagan should not get the benefit of the doubt that her decisions as a Supreme Court Justice would be based on the facts, the law, and the Constitution. In light of her record, the burden of proof is squarely on the shoulders of Elena Kagan and those supporting her. It is up to them to demonstrate that Kagan has had a near-religious conversion experience: that by something resembling a miracle she is now capable of being an impartial justice who merits a lifetime appointment to the highest court in the land – rather than the political lawyer she has been throughout her career whose decisions will be based on her own well-established penchant for picking who she thinks should win and who should lose.