Photographically, the setup for Solicitor General Elena Kagan’s confirmation hearing was identical to that of Justice Sonia Sotomayor’s: a spare table with water, the blue-suited nominee facing a semi-circle of senators, a horseshoe of photographers crouching on the floor and scrambling for the best possible angle.
The tenor of the hearings, however, was far different from Sotomayor’s, in which the phrase “wise Latina woman” was batted around freely and Republicans railed against the influence of empathy in the courtroom. Today’s opening statements circled around more grounded themes, such as the question of what it means to be an “activist judge,” the fact that choices – particularly elections – have consequences and the notion that confirmation hearings should reveal a nominee’s true opinions.
Sen. John Cornyn (R-Texas) expressed vociferous opposition to the idea of “activism” playing a role in the court. “There are two visions of the role of judges in American – the traditionalist and activist visions,” he said, saying that the activist vision – one in which the “Supreme Court changes the Constitution when it sees a problem” is the wrong vision, because it is making changes “without popular consent.”
Sen. Jon Kyl (R-Arizona) derided Kagan’s background as “one of privilege and therefore [lacking in] understanding of how the law affects others,” and said he was concerned “there are warning signs” that she may be a “results-oriented judge,” interpreting laws to ensure a certain outcome.
Sens. Lindsey Graham (R-South Carolina) and Tom Coburn (R-Oklahoma) offered up criticism along with resignation and bite. Graham, conceding that Kagan received recommendations from both sides of the aisle (he called a letter from one-time Republican appellate court nominee Miguel Estrada “humbling”), said Americans will understand after this hearing “that elections do matter.” He asked, “What did I expect from President Obama? Just what I’m getting.”
The Democrats, too, were on the attack – not against Kagan, but against the culture of the current Supreme Court. Turning the Republicans’ definition of “activist judge” around, the Democrats portrayed activism, decried by Republican senators during Sotomayor’s confirmation hearings, as a syndrome that has distorted the court’s recent decisions.
At issue: the Citizens United v. Federal Election Commission decision, in which the court ruled corporations could make campaign donations, and the 2008 ruling that slashed Exxon Mobil’s debt for the Exxon Valdez oil spill and set a cap on damages for future accidents.
Sen. Al Franken (D-Minnesota), the most junior member of the Senate Judiciary Committee, said the impact of Citizens United was far reaching, adding that the decision overturned a 1998 Minnesota law that kept corporate money out of elections. The Citizens United decision, Franken said, affected “not just federal elections, but Duluth elections.” Franken noted that laws requiring seatbelts in cars and the standard of lead-free gas were able to pass because businesses and campaign funds could not mix.
“Citizens United isn’t just about election law; it isn’t just about campaign finance law. It’s about seatbelts and clean air … and our ability to pass laws that protect the American people even if it hurts the corporate bottom line,” Franken said.
Added Sen. Russ Feingold (D-Wisconsin), “The court badly damaged its integrity by elevating the rights of the corporation over the rights of the people.”
On the Exxon Valdez decision, Sen. Sheldon Whitehouse (D-Rhode Island) said the court valued businesses over consumers, and asked whether, if the court had not cut or limited Exxon Mobil’s damages, BP would have been more careful in the Gulf of Mexico. Whitehouse said the Exxon ruling let BP know “the Supreme Court had its back.”
“This court gives me the impression that in business cases, the working majority is business-oriented to a fault,” said Sen. Ted Kaufman (D-Delaware).
Kaufman was unsparing, criticizing both the current court and the nomination process.
“What makes the Citizens United decision particularly troubling is that it is at odds with what some of the court’s most recently confirmed members said during their confirmation hearings,” Kaufman said. “We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.”
The hearing continues Tuesday.