Ezra Klein on Kagan Hearings

Ezra Klein writes in Newsweek about the importance of the confirmation hearings for Supreme Court nominee Elena Kagan.

Simon Lazarus, public-policy counsel at the National Senior Citizens Law Center, was more pessimistic. "We are in an era where the issue is whether the court will become a conscious agent overturning progressive laws the way it was before the New Deal," he said. Citizens United grabbed headlines for its audacity, but Lazarus believes it's only one of many examples of the Roberts Court legislating—or, more to the point, delegislating—from the bench. "They've been in the legal underbrush, narrowly construing laws so they're not workable, or eliminating remedies so they can't be enforced, or stopping consumers and businesses from getting into court with claims in the first place," he said.

So where does Elena Kagan fit into all this? You'll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she'll answer. John Roberts's famous "umpire speech" showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we're drafting.

Conservatives have long complained about liberal judicial activism despite the fact that the Rehnquist court reversed established legal precedent more often than the more liberal Warren court. The Kagan nomination has drawn predictable fire from Republicans. It has also been criticized by progressives such as Glenn Greenwald. Given the power wielded by the Supreme Court Klein is right that we deserve more than evasiveness from the nominee and political grand-standing from Senate inquisitors.

--Ballard Burgher