What Elena Kagan could have and should have said (and still have been confirmed): a reply.

• Author: Segall, Eric J.

MEMORANDUM FOR THE PRESIDENT OF THE UNITED STATES

From: Elena Kagan

Re: My Proposed Opening Statement for the Confirmation Hearing

Date: June 2010

Mr. President, your counsel has urged you (1) to persuade me to either change the draft opening statement (2) I previously sent to you or withdraw my nomination. I respectfully encourage you to do neither.

Although counsel does not take direct issue with the substance of my draft statement, he believes that my remarks would lead to a nomination battle that either we would not win or would distract the administration from more important matters such as health care, the economy, and our national security. With all due respect, he is wrong on both counts.

First, my opening remarks simply state the relatively obvious and well-accepted idea that Supreme Court constitutional cases require that the Justices exercise significant discretion when reaching appropriate outcomes. Virtually all constitutional law professors, media commentators, and even the senators themselves already agree with that proposition. The only apparent place this truth can't be uttered is in the Senate Judiciary Committee. We should welcome the Republican senator who wants to argue that Supreme Court Justices decide these cases like computers, where human judgment is unnecessary. My statement makes clear that the existence of discretion on issues like gun control, abortion, and campaign finance reform does not equate with "legislating from the bench." If we were to have this argument over how the Supreme Court actually decides these cases, I promise the opposition will look naive and silly.

Counsel is concerned that the Republican Party has convinced all of America that there are only two kinds of Justices: liberal (Democratic) judicial activists and conservative (Republican) Justices who exercise appropriate self-restraint. I agree that the Republicans have so far won this argument, and that is one of the reasons we have had such a difficult time pushing our nominees through the Senate. It is well past time to change this dynamic, and the best place to start is a nomination hearing broadcast on national television. I can make a persuasive case that the conservative wing of the Court has been invalidating state and federal laws and overturning precedent at a rate that demonstrates that the left has no monopoly on judicial activism. Furthermore, I will persuasively argue (in a manner laypeople can understand) that this entire debate...