U.S. Senate Confirms Kagan Nomination to Supreme Court
A week ago, the U.S. Senate narrowly confirmed Elena Kagan to a seat on the Supreme Court, 63-37. Kagan’s confirmation can be attributed to the support of five Republican moderates: Senators Susan Collins (Maine), Lindsey Graham (South Carolina), Judd Gregg (New Hampshire), Richard Lugar (Indiana), and Olympia Snowe (Maine). Only one Democrat, Senator Ben Nelson of Nebraska, opposed Kagan’s confirmation. Kagan’s confirmation total was the narrowest since 2006, when Samuel Alito received just 58 votes.
Kagan’s confirmation does not significantly alter the ideological breakdown of the court. Since the onset of John Roberts’ tenure as Chief Justice, the Supreme Court has become the most conservative in living memory. In the 2009-2010 term, 65 percent of the decisions issued by the court have been classified as conservative. This is the highest number of conservative decisions issued by the court since 1953. In addition, the Washington Post argues that four of the six most conservative justices who have sat on the court since 1937 are members of the current court. These justices include Chief Justice John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas, who (based on his voting record) is probably the most conservative justice in the court’s history. Even with the confirmation of liberal Elena Kagan, the court’s ideological breakdown will not change.
Last month’s retirement of John Paul Stevens, the court’s most senior justice and the leader of the liberal wing, provided President Barack Obama the opportunity to appoint a judge whose legal ideology mirrors his own. Conservatives pleaded with the president to appoint a judicial moderate, such as Appellate Justice Merrick Garland, to fill the seat vacated by John Paul Stevens. Despite these pleas, Obama appointed an extreme liberal who shares his penchant for judicial activism and a “living” Constitution.
Elena Kagan’s role on the court will be minimal during her first term as an associate justice, due to the fact that she is required to recuse herself from eleven cases in the 2010-2011 term in which she was previously involved in her role as Solicitor General. In fact, no other justice currently on the Supreme Court has abstained from more than five cases during the entirety of their tenure. Justice Antonin Scalia, in 24 years on the court, has recused himself just three times. During the 2010-2011 term, the Supreme Court is expected to hear cases on several landmark issues, possibly to include same-sex marriage, immigration policy, and the role of the federal government in creating health care policy. But Kagan may not even be able to participate in some of these.
The appointment of another activist liberal to the Supreme Court is bad for the judicial system and bad for America, but in this case, it will not alter the Court’s ideological balance. Kagan’s far-left views pose serious problems for the Supreme Court in the years ahead. The Kagan confirmation could ultimately play a prime role in transforming the Court from an institution rightly grounded in the Constitution’s original intent to one that is wrongly dominated by judicial activism and wrongly influenced by international law. Conservatives should make the issue of Supreme Court nomination a focal point of the 2010 and 2012 elections. Conservatives must unite behind the doctrine of original intent and prevent liberals from commandeering the U.S. Constitution.
The National section of the Weekly Political Forecast is authored by PAI’s Political Analyst.
