This editorial will appear in tomorrow’s print edition.
Here’s a nightmare scenario for Democrats: What if Elena Kagan is telling the truth?
In last week’s Senate hearings, President Obama’s soon-to-be-confirmed Supreme Court nominee testified she’s about the law, the whole law and nothing but the law. She may be a “progressive” Democrat, but she’ll be “on nobody’s team” once she dons the black robe.
Heaven forbid that she would bring any preferred outcomes to a case.
“I mean, the worst kind of thing you can say of a judge is he or she is results-oriented,” she told the Judiciary Committee. “It suggests that a judge is kind of picking sides irrespective of what the law requires. …
“The judge should be trying to figure out as best she can what the law requires and not going in and saying, ‘You know, I don’t really care about the law, you know, this side should win.’”
How can anyone quarrel with that? For that matter, how can any Republican quarrel with a nominee whose distinguished legal career includes no time as an actual judge and thus no paper trail of decisions that can confidently be attributed to her own judicial philosophy?
Accused of making military recruitment tougher while dean of the Harvard Law School, she said she was merely representing Harvard’s institutional position against Don’t Ask Don’t Tell –and her personal opposition to the policy was not a factor.
Similarly, she argued for controversial positions while counsel to Bill Clinton – but she did so as his policy adviser and attorney, not necessarily because she favored those policies herself.
Does she subscribe to the liberal concept of a “living Constitution”? Too “loosey goosey,” she says.
Republican critics who’ve been contorting themselves every which way to find a line of attack on her might as well give up. There’s nothing to aim at, really, beyond that fact that she’s a Democrat.
In fact, they’d be smart to vote for her – down the road, that would let them scold the Democratic senators who dig in against the next Republican nominee for no better reason than he or she is a Republican.
If Kagan becomes – as she promises – a non-ideological, unpredictable, non-partisan, dispassionate, take-each-case-at-a-time arbiter of the law as written, the pure shock and surprise of it might induce premature heart attacks in some of her colleagues.
Every Republican in the Senate must realize that resistance is futile, that Kagan’s confirmation is a done deal. Why not revive – if only for a day – the grand tradition of bipartisanship that produced the unanimous confirmation of Reagan-nominee Antonin Scalia in 1986?
There’s always the slight chance that Kagan will turn out to be that rare species long thought to be extinct: the genuinely impartial jurist.