Kagan’s Notes on Bush v. Gore Raise Significant Questions

According to the Wall Street Journal, among the documents that the Senate Judiciary Committee has posted relating to the Kagan nomination are handwritten notes that the nominee made for a speech she was to deliver to Princeton University alumni in 2003. The notes, according to the Journal’s account of their contents, reveal Kagan’s misgivings about the Supreme Court’s decision in the Bush v. Gore election case. Kagan’s observations on that case, and related views on the notion of judicial restraint, raise significant questions that Senate Republicans should pursue vigorously during the hearings on Kagan’s nomination:1. Kagan evidently opines that judges “necessarily [and] inevitably” take into account “political [and] policy questions …” when deciding cases. Does Ms. Kagan really believe this? Does she really believe that it is inevitable – and appropriate – for judges to  give weight to political and policy concerns when deciding disputes? Is it really proper for a court to make a decision based other than on the facts of the case and the applicable law? There are many – including, presumably, the GOP members of the Judiciary Committee – who think that political and policy views most definitely DO NOT have any place in the judicial making calculus. If Ms. Kagan really believes that judicial decisions may properly be based upon policy or political principles, there is substantial question as to whether she is qualified to sit on the Court.

2. Kagan further observed that courts should “defer to the political branches” and exercise judicial review “with caution.” Assuming that Ms. Kagan believed that the Supreme Court had not shown proper deference to the “political branches” in Bush v. Gore, and had failed to exercise its review function with something other than caution, it bears asking what was (is?) her view on the various decisions of the Florida Supreme Court in the 2000 election debacle. What was the Supreme Court to do when presented with the decisions of a state tribunal that had not only not deferred to the legislative and executive branches proper exercise of their authority, but had in fact wholly ignored the considered decisions taken by the political branches and arrogated to itself functions that were solely and exclusively within the province of the political branches? Does her preference for deference to the political branches lead her to believe that the Florida Supreme Court acted in anything but a lawless manner? Somehow I think that we know the answer to the question, but it bears exploration.

3. Does Ms. Kagan believe that reviewing courts should show deference to the political branches when, for example, legislative enactments plainly violate express provisions of the Constitution? Does she believe that the Supreme Court failed to show such deference when it overruled the preferences expressed by the political branches in cases such as Roe v. Wade, the various Bush era terrorism cases? What are the limits of the deference to which she believes the political branches are due, and does that deference end with matters that reflect her own political and policy preferences?

Senate Republicans have an obligation to probe Ms. Kagan on thee matters, and to oppose her confirmation if they are not satisfied with the answers that they receive.

Once I have had the chance to fully review the notes in question, I may post an update with additional thoughts and questions.

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