Elena Kagan's Opening Remarks

Driving back from the jail, I was listening to CNN which was broadcasting Elena Kagan's opening remarks live. Without accompanying video to distract me, I was able to focus just on the content of her statement and her tone.

First, she is a really good speaker. She exuded a sense of calm. Second, there was a lot of emphasis on constitutional rights and equality of justice and on the need to be fair.

Third, she was deferential, promising to listen to Congress, the American people as they speak through the electoral process and their Representatives, and her fellow justices.

She doesn't seem to me to have an agenda. [More...]

From excerpts (full text not available yet.)

The idea is engraved on the very face of the Supreme Court building, "Equal Justice Under Law."

It means that everyone who comes before the court, regardless of wealth or power or station, receives the same process and the same protections. What this commands of judges is evenhandedness and impartiality. What it promises is nothing less than a fair shake for every American.

...."The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people. "

I think my favorite line was this one:

And I've learned the value of a habit that Justice Stevens wrote about more than fifty years ago -- of 'understanding before disagreeing.'

There are many times I've come away from a hearing thinking the judge just didn't get it, and it was their lack of understanding (or refusal to understand) the argument that resulted in their erroneous or misguided ruling. A promise to understand before disagreeing is a good start.

Kagan ended with:

"I will make no pledges this week other than this one, that if confirmed, I will remember and abide by all these lessons. I will listen hard to every party before the court and to each of my colleagues. I will work hard, and I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law. That is what I owe to the legacy I share with so many Americans."

That's really all anyone can ask. I think she means it. Had those words come from Justice Alito at his confirmation hearing, I would have rolled my eyes. He was as partisan and ideological a choice as anyone could find. And he's lived up to his billing. With Kagan, I do believe her. (And more so than say, Justice Sotomayor.)

Time will tell, but she's going to be confirmed. We could have done worse, particularly with Obama, whose commitment to bi-partisanship (compromise) seems to be the hallmark of his Presidency.

If you get a chance, listen to a replay of her remarks, and let us know what you think.

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    I share your sentiments, Jeralyn (5.00 / 1) (#2)
    by christinep on Mon Jun 28, 2010 at 05:41:42 PM EST
    and believe her as well. My belief is grounded in her reported life history together with the dimensions of her experience. Her to-the-point statement (as you observed) bespeaks fairness. In that regard, her comment about her own learning that "no one has a monopoly on truth" rang true as she said it. In a broader sense, her description of wanting to act in a "modest" way and wanting to see the Supreme Court as "a modest institution" has a power of its own in characterizing the relationship of Court to people.

    Seems that her opening remarks (5.00 / 1) (#6)
    by BackFromOhio on Mon Jun 28, 2010 at 09:13:57 PM EST
    struck just the right tone; smart lady!

    Continuity (none / 0) (#1)
    by lentinel on Mon Jun 28, 2010 at 05:23:43 PM EST
    From what I have read, Kagan appears to be soft on the practice of detention without charge or trial.

    Couldn't we have found someone else?

    Does this mean she will be an activist judge? (none / 0) (#3)
    by ding7777 on Mon Jun 28, 2010 at 05:58:29 PM EST
    Third, she was deferential, promising to listen to Congress, the American people as they speak through the electoral process and their Representatives, and her fellow justices

    just the opposite (5.00 / 2) (#4)
    by Jeralyn on Mon Jun 28, 2010 at 06:01:27 PM EST
    I think. She will be very conscious of precedent and the separation of powers.

    "activist" you mean actively en$laving (none / 0) (#5)
    by seabos84 on Mon Jun 28, 2010 at 08:29:16 PM EST
    tho$e of u$ without the re$ource$ to hire Skadden & Arps?

    I took 1 class of business law getting my math degree, so, here goes -----

    The MORE people from the bottom 95% who have to get legally extorted for the benefit of the top 5 or 1%,

    the MORE active the court is in screwing us on the bottom.

    You need 3 years of law school to figure that out?



    The Phat Lady has sung (none / 0) (#7)
    by Yes2Truth on Mon Jun 28, 2010 at 09:35:18 PM EST

    Scalia, Roberts & Asociates could have easily sung from the same hymnal as Kagan.

    Beneficiaries of S. Ct. rulings of the past 35 years
    should feel very comfortable with Kagan on the
    Court.  Gee, W, I'd bet she would have made it a
    6-3 vote.

    And no, I don't believe Hillary nominees would have been any less conservative/right-wing.

    "With Kagan, I do believe her." (none / 0) (#8)
    by diogenes on Mon Jun 28, 2010 at 09:48:10 PM EST
    Kagan, unlike Alito, was smart enough in a careerist way to have no personal paper trail except maybe for articles in the Daily Princetonian.  Everything else is what she did "in her job" for someone else.  She is a Rorshach inkblot and we all project on her what we wish.  
    Based on her Princetonian days she is a left liberal, so I suppose that fits in well here.  

    We would indeed know more about her (5.00 / 1) (#9)
    by andgarden on Mon Jun 28, 2010 at 10:02:28 PM EST
    if she had joined the "Concerned [White Male] Alumni of Princeton."

    My concern has always been that this is (none / 0) (#11)
    by Anne on Tue Jun 29, 2010 at 07:23:22 AM EST
    a person who has spent an entire career representing the views of the people she's worked for, mirroring someone else's philosophy, arguing someone else's point of view and agenda; she will have the freedom to think for herself and represent her own views on the Court, but how comfortable will she be with that independence?  How easy will it be for her to speak up for herself, and let go of the well- and deeply-ingrained habit of shaping her thinking around others?

    As I think about it, it occurs to me that this is perhaps why the lack of judicial experience is an issue: we have no real record of what an independent, doesn't-have-to-answer-to-anyone Elena Kagan thinks and believes.

    Do I want to believe what she says?  Of course.  Do I think she believes what she says? Absolutely.  But words are the easy part - the hard part is - believe it or not - being in a position she has not been in in her entire career: total job security and the freedom to be herself.  I can imagine most thinking that freedom would be easy - but if, for your entire career, you have operated within a structure where you took your cues from and advocated for the positions of others, how much comfort do you have just putting yourself out there?  Call me crazy, but I don't think that's as easy as some people think it is.

    As much as I'm not sure we know and can count on Kagan still being the Princeton liberal she seemed to have been 30 years ago - who is she now? - it seems to have been so long since that Elena Kagan was front and center that I'm not sure she knows if that person still exists, either - and that for me is the big question mark.  Maybe these hearings will provide better clues - but then again, I think this is someone who is adept at saying what people want and need to hear, knows that to reveal her liberal leanings - if she still has them - will take this nomination off the fast track and bog it down in endless Jeff Sessions spectacle, so, I'd venture to guess that when it's all over, we still won't really know which Elena Kagan won a seat on the Court - the Princeton liberal or the I'm whatever-you-need-me-to-be careerist.

    Probably immaterial as I think her confirmation is a foregone conclusion.


    Based on watching Ms. Kagen's face (none / 0) (#10)
    by oculus on Mon Jun 28, 2010 at 10:08:14 PM EST
    while Sen. Hatch was delivering his opening statement, I think the former needs to practice her non-commital expression.