My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:
Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.
“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”
Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.
But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.
Read the rest here.
I’m here in the hearing room, but will not be liveblogging. If anything happens deserving of comment, I’ll post my thoughts.
Jeffrey Rosen has a very long, but very good, essay/review in The New Republic of Melvin Urofsky’s Brandeis biography. Entitled “Why Brandeis Matters,” the piece begins with an examination of Brandeis’s crusade against corporate and governmental bigness as applied to the Roberts Court’s reflection of today’s current economic and political climate and ends with an account of his Zionism as symbolic of his devotion to cultural pluralism.
In between these sections, Rosen provides a timely passage for the Kagan hearings:
In addition to combining judicial restraint with passionate anti-corporate progressivism, Brandeis’s Liggett dissent exemplified a third aspect of his judicial philosophy: his commitment to interpreting the ideals of the Founders in light of the entire range of constitutional history. In this sense, Brandeis provides an inspiring model for citizens today who are searching for an alternative to the rigid originalism championed by some Roberts Court conservatives, and also for an alternative to the untethered “living constitutionalism” of some Warren Court liberals. Brandeis combines elements of originalism and living constitutionalism into an approach that might be called living originalism.
Brandeis believed that the values of the Founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics. He believed in constitutional change—in a talk called “The Living Law,” he charged that the law had “not kept pace with the rapid development of our political, economic, and social ideals” and said “the challenge of legal justice [was] to conform to our contemporary conceptions of social justice.” But Brandeis insisted that efforts to render constitutional values in a contemporary vocabulary always had to be rooted in the text and in the broad unchanging ideals of the Framers. By interpreting the values of the Framers in light of progressive movements across the range of American history, Brandeis believed they could be preserved in a way that served the needs of citizens in the here and now—which is, after all, what the Constitution was written to do.
This “living originalism”–not to be confused with the “restrained activism” I discussed in the post below–was on display today as Solicitor General Kagan sought to bust the originalist/activist binary.
Perhaps she’ll avoid the tough questions. But if she does–if she tries not to get pinned down on how she views certain constitutional issues, that would almost certainly violate the spirit of her 1995 article. Then again, perhaps it’s the Senate’s responsibility to pin her down, and not hers to cooperate. After all, Kagan didn’t disparage Justices Breyer and Ginsburg for being on the receiving end of those “lovefests.”