The Senator began with a very serious -- and promising -- charge: "In 1987, I had my first opportunity to provide 'advice and consent' on a Supreme Court nominee. At that time, I stated that the qualifications essential for evaluating a nominee for the bench included 'integrity, character, legal competence and ability, experience, and philosophy and judicial temperament.' On that test, Elena Kagan fails." These are all good reasons for voting down a judicial nominee. The better question is how Senator McCain reached the conclusion that Kagan failed on any of these metrics. What exactly persuaded him that she was not fit to join the Supreme Court?
Turns out, she failed McCain's fuzzy test on one piece of evidence alone: her approach to military recruitment while dean at Harvard law.
I don't know whether to laugh or cry.
According to McCain, Dean Kagan "unmistakably discouraged" her law students from pursuing a military career because of her opposition to the military's "don't ask, don't tell” policy, which she considered "a profound wrong — a moral injustice of the first order." McCain acknowledges that Kagan is free to disagree with the policy all she wants; what she may not do is “ignore” the Solomon Amendment, which required her to provide military recruiters equal access to Harvard law students. To McCain, this means that Kagan took the law into her own hands and interpreted it as she wished it to be, not as it was written. Notably, McCain points out that the Supreme Court rejected Kagan’s interpretation of the Solomon Amendment, and did so “soundly.” This leads McCain to conclude that “Kagan stepped beyond public advocacy in opposition to a policy and into the realm of usurping the prerogative of the Congress and the president to make law and the courts to interpret it.”
This is so silly that I hardly know where to begin. I can only hope that this was written by a summer intern over the lunch hour, and not by a U.S. Senator and former presidential hopeful.
Take first the one implicit assumption that grounds his argument. To McCain, interpreting legal materials is a formalistic endeavor, a simplistic exercise no more taxing than crossing your t’s and dotting your i’s. If only life were so simple. To express one’s fidelity to law is far simpler in theory than practice. In this particular example, what exactly does “equal access” mean? It cannot possibly mean giving them the same office. Does it mean giving all recruiters offices with the same square footage? And what happens, as it is often the case, when law schools face a space crunch? Could one recruiter be in the basement, another up on the second floor? Could some recruiters be sent across the street?
In saying all this, I am sure that Kagan did not give military recruiters the benefit of the doubt. She might have even made it harder for them to recruit, for all I know. But this is not the same as saying that she openly violated the law. It is to say instead that she interpreted the law narrowly, in accordance to her personal opinions on the question. Is this really all that radical? Could Senator McCain truly believe that she was supposed to do anything else?
The clincher for McCain, I suspect, is the fact that a unanimous Supreme Court rejected her reading of the law. This is probably interesting, even important, but not for the reasons that McCain would want us to believe. What should we read from this unanimous rejection? For McCain, this means that Kagan will be a judicial activist and interpret the law in accordance to her wishes and personal preferences. But this is clearly silly, and not only because all justices, past and present, behave in this way (I have a few books on my shelf I’d love to show the Senator, and a pretty large social science literature). What makes this example interesting and important is the question of judicial impact, and how political actors respond to edicts from the Supreme Court. This is a question that dates back to the founding, runs through Marbury v. Madison and Dred Scott, Brown and the Southern Manifesto, and remains with us today. To say that Kagan’s reading was overturned by a unanimous court is only to say that she misread the law. No shame in that. What the Senator should be asking instead is, what did Kagan do once the Court unanimously announced that her reading was wrong? Did she acquiesce? Or did she simply offer a re-interpretation of her prior position? That is, did she move the recruiters from the building across the street to the basement, or from the basement to the second floor?
I think this is in fact a very interesting question. Consider the recent City of Chicago case. Within days of the Court’s ruling that the Second Amendment would be incorporated and applied to the states via the Fourteenth, the city of Chicago enacted a new gun ordinance. According to Mayor Daley, “In Chicago, we don't give up or give in when it comes to protecting our residents. In my heart, I know that fighting gun violence is the right thing to do.” Should the city have known how the Court would rule in the City of Chicago case and annulled its gun ordinance on its own? And after the case, in light of all the confusion and lack of clarity about what Heller means, should the City simply stop enacting gun control ordinances until the Court clarified its stance? Above all, what does the new city ordinance tell us about Mayor Daley and the Chicago city council, if anything?
To Senator McCain, such an example tells us a great deal about the mayor and the city council. Clearly he misunderstands history and the many ways that our Constitution and laws are continuously interpreted, as part of a colloquy among the branches, state and local governments, and the people in general. This is curious, coming from a person who exalts judicial restraint as much as he does. This is also priceless, coming from a Senator who lists Alito and Roberts as his model judges. I wonder what he will think when the Supreme Court strikes down the Voting Rights Act in the coming years.
In the end, McCain’s letter should make us question the Senate’s “advice and consent” role and whether it is worth the candle. For further proof, I offer a final piece of evidence. This is Senator Session’s opening argument during the Kagan hearings:
“I hope that you can feel free to tell us precisely how you think so we can evaluate, um, what you might be like on the bench. We can have brilliant and wonderful people, but if their approach to judging is such that I think allows them not to be faithful to the law, to not take the, to be able to honor that oath which is to serve under the Constitution and laws of the United States, then we’ve got a problem. I don’t think that’s judging, I think that becomes politics or law or something else.”If these two Senators are an accurate reflection of the constitutional firepower presently residing in the U.S. Senate, I can only say, heaven help us.