The Kagan Nomination and the Role of the Supreme Court
The war in Afghanistan. A major oil spill in the Gulf of Mexico. Comprehensive immigration reform. Middle East peace talks. These are some of the issues facing the Obama Administration this summer. However, more than likely, none of these events will have the lasting impact on the Administration or on the nation as the possible confirmation of Solicitor General Elena Kagan as the next U.S. Supreme Court associate justice.
While the Court is the least understood and least covered of the three branches of the federal government, it is arguably the most important because of its power of judicial review. By being able to declare the laws of the Congress and the actions of the Executive Branch unconstitutional (along with legislatures and executives at the state level), the Court often serves as the ultimate arbiter of national policy in our system. While the framers of the Constitution saw the potential danger in this arrangement (where the only non-elected branch of the government had essentially the final say over the elected branches), they nonetheless argued that this was the most effective way to ensure that government was limited in scope. Alexander Hamilton, the most ardent defender of judicial review among the framers, wrote in his essay, Federalist No.78, that limited government "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." Whether one agrees with Hamilton or one sees the Court's central role in policymaking as an affront to limited government (as many do), there is little dispute that more than 200 years of American history have shown that the Constitution largely means what the Supreme Court tells us it means.
Despite this, however, the Kagan nomination will probably be the least discussed of all the issues listed above and will have little impact on the elections this fall. Why is that the case? Well, first, unless directly impacted by a particular high profile decision, most people do not pay attention to the Court and what it does.
This lack of interest then extends to elections themselves, as the issue of the Supreme Court is rarely one of consequence for voters. In fact, with the exception of a handful of presidential elections in the 20th century, the Court has played little to no role whatsoever in helping determine the winner.
Second, Supreme Court nomination hearings have never told us a great deal about those being nominated. In fact, the first nominee to even testify before the Senate Judiciary Committee was Harlan Stone in 1925. It would then be another 30 years before testifying before the Committee would become a regular part of the process. And, with the exception of the Abe Fortas nomination in 1968, they were all fairly uninteresting affairs. That changed most significantly with the 1986 nomination of Judge Robert Bork by President Ronald Reagan. Bork became the subject of an extremely controversial and highly publicized Supreme Court nomination hearing. That hearing process and his subsequent rejection by the Senate spawned a new word to describe the process of defeating a nominee: Borking.
But more "interesting" and contentious hearings have not resulted in more informative hearings. In fact, they seem to have had the opposite effect. Since the Bork nomination, hearings have provided little insight into a potential justice's views because doing so would only cause "needless" attention to the nominee. That is, since most people do not pay attention to the Court in the first place, the nominees (and the White House) believe they should not give the public a reason to start paying attention by espousing controversial views on divisive topics (like Bork did). Instead, each nominee claims to have no predisposition to any side on most any issue. This, of course, creates even more reason for people to not pay attention because hearings have been reduced to merely pre-scripted events where the decisions of the Senators have largely been made before the cameras are ever turned on. The three-day Kagan confirmation hearings served as another solid example of this trend.
The result of this process is that a "vicious cycle of disinterest" is perpetuated in arguably the most important branch of government. In our system of government, one that is based clearly on interest and involvement in the actions and decisions of our leaders, this can only be a dangerous thing.
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