The Empathy Judge vs the Rule-of-Law Judge

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As Kagan is questioned by the Senators, this blog post seemed pertinent

The Myth of the Conservative Supreme Court 
Chris Field
Ever since the Supreme Court wrongly delivered the presidential election to George W. Bush in 2000, the court has rapidly accelerated its hard-right activist tilt. At least that?s what People for the American Way claimed in a recent piece of left-wing propaganda that parrots several other liberal activist group talking points.

Is the court really hard-right? Did we miss something?

Actually, no, but liberal activists are trying valiantly to create some doubt about that.

The most interesting question is why they advance a claim with such laughably thin support.

With the nomination hearings for Elena Kagan's nomination to the Supreme Court, now is the perfect time to examine what the high court's actual philosophy is.

Every year, the court gravely disappoints adherents of the rule of law.

The court certainly did get some important cases right during the last decade. Yet it is a serious error to just infer that any decision most conservatives agree with was ideologically driven.

This is the them of a smart piece by Todd Gaziano titled "What Conservative Court?" in the July issue of Townhall magazine.

Here's an excerpt from the piece:

Why do many liberal activist groups and pundits assert that the Supreme Court is a tool of right-wing interests? ?

Some mythmakers? perception of mainstream thought is skewed so far to the Left that they don?t recognize a neutral, legal principle when they see one.

Liberal elites have a quasi-religious passion for government-enforced racial quotas (what they call ?goals?), unlimited federal power to regulate the environment, the economy, and everything else, and for far-reaching limits on political speech, especially for folks they dislike. These tenets of liberal faith go beyond mere advocacy. Floating in their radical bubbles, the activist mythmakers are sufficiently unmoored from reality and consider their views so superior that they can?t fathom how their fellow citizens could honestly disagree with them?unless they are racists, corporate polluters or dangerous proponents of free speech.

The liberal elites? cramped understanding of (or disregard for) the rule of law is a key cause of the laughable ?right-wing? accusations. The philosophical divide between those who want ?empathy? judges and those who want ?rule-of-law? judges is profound, and while it corresponds roughly with political liberals and conservatives, there are critical differences in how the respective legal philosophies operate.

Certain liberal legal lights and their admirers have advanced a capacious legal philosophy proclaiming that there is very little, if any, objective truth in the law. The sophists of this school argue that studying the text is no less open-ended than any other approach to law. And since they believe all, or almost all, law is subjective, it is imperative for judges to reach ?progressive? results. The perfect empathy judge, in their view, reaches the most liberal outcome every time.

Rule-of-law judges and their supporters do not want ?conservative? results every time, especially not if the Constitution and statutes do not support that result. The rule-of-law school teaches that judges have a very limited role in our democracy, that the Constitution and laws can be objectively interpreted and fairly applied in almost all cases and that our security comes from a neutral application of legal principles.

Rule-of-law judges do not deny that personal bias exists, but they believe it can and should be constrained by the law, not given free reign. The empathy crowd mocks this ideal as impossible to attain, while defenders of the rule of law ask, ?Why not try to come close?? ?

The war over the courts has been simmering for years, but conservative philosophical gains in recent decades have forced the Left to fundamentally change tactics from openly advocating ?non-interpretive? modes of constitutional analysis (I?m not making that up) to pretending to be more faithful, neutral umpires than John Roberts (see Sotomayor?s remarkable pretense of fidelity to the Constitution in her confirmation hearing).

As a consequence, liberals must label any decision they don?t like as an example of ?right-wing? activism. This is pure projection, but it?s sensible politics. In politics, the best defense often is a good offense, whether the attack is true or not. In a way, it is triumphant proof that the rule-of-law philosophy is prevailing. All that is necessary now is to show that our reading of the Constitution is correct.
 

May the Constitution & Rule-of-law win

[sirs]

Republican senators are gearing up for next week's argument over the nomination of Solicitor General Elena Kagan to the Supreme Court. (It would be silly to call it a "battle," since, with 59 Democrats in the Senate, the outcome is foreordained.) Kagan will be the first Supreme Court appointee without judicial experience since William Rehnquist in 1972; most of her experience is administrative and political, including in the Clinton White House.

A stint in the White House always produces a paper trail, and Republican senators are scrutinizing those documents. The New York Times reports on one finding that has important implications for policy and constitutional law:

The Senate Republican leader, Mitch McConnell of Kentucky, on Wednesday questioned the ability of Elena Kagan to serve impartially as a Supreme Court justice, seizing on notes scribbled on a page when she was working as an adviser in the Clinton White House that suggested she supported changes in campaign finance laws that would hamstring Republicans but not Democrats. . . .

The hand-written notes, included in documents released by the Clinton library, were from Feb. 2, 1997. At one point, Ms. Kagan, in reference to a proposed ban on so-called soft money--donations given to parties rather than directly to candidates--wrote, "affects Repubs, not Dems!"

On another page, Ms. Kagan wrote about the possibility of requiring television stations to offer free air time to political candidates, as a way to offset independent expenditures by groups and other political advocates.

"Free TV as balance to indep expends??" she wrote. "Clearly on mind of Dems--need a way to ctrbalance this."

At issue was the McCain-Feingold "campaign finance reform" legislation (which in the event was not enacted until 2002, when George W. Bush was president). Countering McConnell's criticism, the Obama White House pointed to a February 1996 memo to Harold Ickes, signed by Kagan and two other aides, in which they argued against tinkering with the bill for partisan advantage:

We strongly concur with our current strategy of not proposing any specific changes to the bill and maintaining the President's call for quick passage of S. 1219. Any proposals to change the legislation will be seen as an attempt to weaken the bill in order to aid Democrats and will cost the President the credit he received for supporting S. 1219.

Perhaps Kagan's view of the political strategy changed in the year following this memo, or maybe McConnell is overinterpreting her handwritten notes. What is clear, though, is that the possibility of using restrictions on "campaign finance" for partisan advantage was very much on the minds of the people in the Clinton White House, even if, in 1996 at least, they disclaimed the intention to do so.

One reason they might have taken that approach back then is that both houses of Congress were controlled by the other party. Flash forward to 2010, and the Democratic Party has the White House again, along with big majorities in both House and Senate. The U.S. Supreme Court has recently overturned a major provision of McCain-Feingold as a violation of free speech (rejecting the defense offered by Kagan's office), and Congress is looking to circumvent the ruling.

The result is the Democracy Is Strengthened by Casting Light on Spending in Elections Act. The title is several mouthfuls, but the acronym, Disclose, is an easy bite. Its fate is uncertain in the Senate, where the Republicans could filibuster it, but it passed the House yesterday, 219-206. Only two Republicans, both from heavily Democratic districts, voted "yes," while 36 Democrats crossed party lines to oppose it.

Unlike McCain-Feingold, the Disclose Act makes no pretense of bipartisanship. The Washington Examiner's Mark Hemingway explains just how partisan it is:

The restrictions in the DISCLOSE Act only cut one way--against business. If you took TARP funds as a business, express political advocacy is now verboten. So GM has very limited first amendment rights, but even though arguably the primary beneficiary of the auto bailout was the United Auto Workers union which got government garunteed [sic] billions directly as a result of the TARP funding--UAW can spend almost whatever it pleases, and it has a history of spending millions on Democratic campaigns.

Further, under the DISCLOSE Act if a company has more than $7 million in government contracts, it has no right to political speech. But public sector unions can spend millions of recycled tax dollars campaigning for Democrats, no problem. All this will likely do is make business spend more money on lobbyists rather than campaigns. Of course, campaign spending is much more transparent than lobbying, but when it comes to the DISCLOSE act, clean elections and free speech seem to be secondary considerations to getting Democrats elected.

HotAir.com notes (with video) that one Democratic representative, Hank Johnson of Georgia, was explicit in his goals: Unless the Disclose Act passes, Johnson said on the House floor, "we'll see more Republicans getting elected."

This is in contrast to the 1996 Kagan memo renouncing the intention to seek partisan advantage from McCain-Feingold. Yet even that memo put the argument in terms of public relations rather than principle. Unlike the Clinton administration, the Obama administration doesn't seem to care how bad it looks, so it will force through whatever it can get away with--and Elena Kagan may, not long in the future, be in a position to vote to uphold the constitutionality of blatantly partisan speech restrictions.

Johnson's comments, and Kagan's, illustrate why it is so mischievous for Congress to restrict political speech in the name of "clean elections." It is almost inevitable that whatever restrictions lawmakers enact will be designed to protect their own kind--either members of the dominant party or incumbents in general.

There is an alternative approach--a nonpartisan, neutral principle that ought to be applied to this problem. Its first five words are "Congress shall make no law . . ."


Confirmed?, Yes...Impartial?, hell No

[sirs]

Say it ain't so, Elena.

Elena Kagan thinks that the "Borking" of Robert Bork during his 1987 confirmation hearings for the Supreme Court would deserve a commemorative plate if the Franklin Mint launched a "great moments in legal history" line of dishware.

This is not the time to rehearse all the reasons why Kagan is wrong on that score. Still, there is one adverse result of the Bork hearings worth dwelling on. Bork was the last Supreme Court nominee to give serious answers to serious questions. But because he was successfully anathematized by the left, no nominee since has dared show Borkian forthrightness.

Consider Monday's thunderclap from the judicial Mount Olympus: The Second Amendment right to own a gun extends to state and local government. Personally, I think Justice Clarence Thomas' separate opinion in favor of the 14th Amendment's "privileges and immunities" clause over the due process clause was the better argument. But that's a debate for another day.

The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen Breyer's dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. "I can find nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes," Breyer wrote for the minority.

But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick Leahy asked her, "Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right?"

"Yes, sir," she replied.

Both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That's why Leahy asked the questions the way he did, and that's why Sotomayor answered them the way she did. It's also why he spun her answers into more than they were: "I do not see how any fair observer could regard (Sotomayor's) testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes." He made it sound as though she was open to an expansive reading of the Second Amendment when everyone knew she wasn't. (As a judge, she was hardly a hero of the NRA.)

Here's the point: Sotomayor wasn't an exception to the rule; she was following it.

Although the Bork inquisition was a largely partisan affair, the consequences have yielded a bipartisan sham. Republican and Democratic nominees alike are trained to say as little as possible and to stay a razor's width on the side of truthfulness. The point is not to give the best, most thoughtful or most honest answer, but to give the answer that makes it the most difficult for senators to vote against you. It's as if we expect nominees to demonstrate, one last time, everything we hate and distrust about lawyers before they don their priestly robes.

Nobody is shocked that Sotomayor has revealed herself to be the liberal everyone knew her to be. But the fact that everyone was in on the lie is just further evidence of the sham Supreme Court hearings have become. They are a nonviolent and fairly bloodless cousin to totalitarian show trials, where everyone follows a script and politicians pretend to be "gravely concerned" and "shocked" upon "discovering" things they already knew.

And that's why Kagan should be the hero of this tale. She has vociferously argued that the "Bork hearings were great ... the best thing that ever happened to constitutional democracy." She has lamented how, ever since, the hearings process has become nothing more that "a repetition of platitudes." Kagan once implored senators to dig deep into the nominee's "constitutional views and commitments."

Alas, it doesn't look like Kagan will be following the Kagan standard. On Tuesday morning she distanced herself as best she could from those views. And when asked by Sen. Jeff Sessions whether she is a "legal progressive" -- something pretty much all objective observers and her own friends and former colleagues know her to be -- the brilliant and scholarly Kagan claimed to have no idea what the term even means.

After his rejection by the Senate, Bork wrote a masterful book, "The Tempting of America: The Political Seduction of the Law." The title of the book on Kagan might well be titled "The Tempting of Kagan: The Political Seduction of the Process."


The un-Borking of Kagan

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