Senate Judiciary Committee Republicans certainly surpassed low expectations for their performance in Monday's opening day of the Kagan confirmation hearings. They sunk all the way into the gutter by vilifying Justice Thurgood Marshall, naming him 35 times.
Expect more of that, political posturing in the guise of "tough questions."
Sen. Jeff Sessions (Ala.), the ranking Republican on the Senate Judiciary Committee, as well as Sen. Orrin Hatch (R-Utah), warned of a tough grilling session from Republicans throughout the week. They said they would focus mainly on what they considered her lack of “real legal experience” and years spent in policy and politics.
“It is not a coronation, but a confirmation,” Sessions told a packed Senate Judiciary hearing room.
Democrats, on the other hand, took this opportunity to blast the Roberts' court and its corporatist bent, particularly the Citizens United decision. Leahy kicked it off, though with a bit more subtlety than his colleagues on the committee.
Our path to a more perfect Union also included the rejection 75 years ago of conservative judicial activism by the Supreme Court and our establishing a social safety net for all Americans. It began with our outlawing child labor and guaranteeing a minimum wage. Through Social Security, Medicare and Medicaid, Congress ensured that growing old no longer means growing poor, and that being older or poor no longer means being without medical care. That progress continues today. All of us are the better for it....
When we discuss the Constitution's commerce clause or spending power, we are talking about congressional authority to pass laws to ensure protection of our communities from natural and man-made disasters, to encourage clean air and water, to provide health care for all Americans, to ensure safe food and drugs, to protect equal rights, to enforce safe workplaces and to provide a safety net for seniors. This hearing is, accordingly, about the fundamental freedoms of all Americans.
Durbin followed suit.
Now of course, we are in the new generation and a new time, and many questions are going to be raised. I think we have heard repeatedly from the other side of the aisle their loyalty to the concept of traditionalism and their opposition to judicial activism. I have two words for them: Citizens United....
Justice John Paul Stevens wrote in the Citizens United dissent and I quote, “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
If that isn’t judicial activism, what is? And it was espoused and sponsored by men who had stood before us under oath and swore they would never engage in judicial activism....
He made a point of adding:
Well, Ms. Kagan, you deserve to be judged on your own merits. Not on the basis of the strength and weakness or philosophy of any judge for whom you clerked. But before I leave this subject, let me say for the record: America is a better nation because of the tenacity, integrity, and values of Thurgood Marshall.
Whitehouse contributed:
"When the forces of society are arrayed against you; when lobbyists have the legislature tied in knots; when the governor's mansion is in the pockets of special interests; when the owners of the local paper have marshaled popular opinion against you, one last sanctuary still remains the jury."
"Now, powerful corporations don't like the jury. They don't like the fact that they too must stand before a group of ordinary citizens without the advantage of all the influence that money can buy."
"Sadly, the Supreme Court seems to be buying what corporations are selling. The Exxon v. Baker decision which arose from the terrible Exxon Valdez spill rejected a jury's award of $5 billion in punitive damages, just one year's profits for Exxon, and reduced the award by 90 percent. Anything more than the compensatory damage award, the court reasoned, would make punitive damages too unpredictable for corporations."
And finally Franken:
"I think we've established very convincingly, we did during the Sotomayor hearing, that there is such a thing as judicial activism. There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts court, and it has cut in only one direction, in favor of powerful corporate interests and against the rights of individual Americans. "
"So here is my point, General Kagan. Citizens United isn't just about election law. It isn't just about campaign finance law. It's about seat belts. It's about clean air and clean water. It's about energy policy and the rights of workers and investors. It's about health care. It's about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.
As Justice Stevens said, it's about our need to prevent corporations from undermining self-government."
That's day one, with Republicans and Democrats clearly staking out their definitions of "judicial activism" and defining both governing and judicial philosophies. That's what opening day of confirmation hearings is all about--making political points. From here on, it's going to be much more about Kagan and what she tell us all. To that end, I concur with Adam Serwer:
Kagan once argued that confirmation hearings had turned into "a repetition of platitudes." She's right -- but her nomination is in part the result of a White House eager to avoid a tough confirmation fight, and so she better be ready to call on those same platitudes to save her from a substantive grilling.
The Democrats on the committee should by no means let her get away with that. Her participation in the continued expansion of government power in the name of national security should be probed carefully. Just because most of the complaints conservatives have about her are baseless doesn't mean Democrats should give her a pass.
The president suggested that Kagan's critics don't have much to use against her. The flip side is that liberals don't really have much to like. Kagan should use the hearings to do more than deflect Republican criticisms. She should also give liberals a reason to vote for her confirmation. Barring some last minute game-changer, Kagan's road to confirmation is likely to be smooth -- all the more reason for Democrats to push for something more than the usual hollow Beltway ritual.