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EXCLUSIVE/ Rick Garnett: Elena Kagan and the Future of the U.S. Supreme Court

Professor of Constitutional Law Richard Garnett sheds light on the role of the Supreme Court, the qualifications of justices, and what to expect from President Obama's second nominee Elena Kagan.  

On May 10 President Obama nominated Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme CourtOn May 10 President Obama nominated Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme Court

Americans are embroiled in hot debate as the Senate Judiciary Committee questions General Solicitor Elena Kagan, who has been nominated by President Obama to take the seat of Justice John Paul Stevens on the Supreme Court. 

Professor of Constitutional Law Rick Garnett, of the University of Notre Dame Law School spoke with ilsussidiario.net to shed light on the nomination, the Senate Judiciary Committee hearings, and the role of the High Court,

What are appointment hearings, and how do they play into the appointment of a new Supreme Court Justice?

Both Houses of Congress use a number of Committees – such as the Senate Judiciary Committee – to carry out their constitutional functions. In order to assist the full Senate in carrying out its constitutional duty to provide “advice and consent” with respect to the President’s nominees for the Supreme Court, the Judiciary Committee holds hearings on the nominations. This was not always the case. In fact, the Senate did not being holding confirmation hearings for Supreme Court nominees until the then-controversial nomination of Louis Brandeis in 1916. And, nominees did not start appearing at their confirmation hearings for another twenty years.

What is the role of a Supreme Court Justice, and what are the general qualifications to fill this role?

The Constitution does not specify any particular qualifications for a justice of the Supreme Court – there is not even a minimum-age requirement, as there is for service in Congress and as President. A justice need not have served previously as a judge, have attained any particular level of academic achievement – or even have attended law school. The American Bar Association provides “ratings” of judicial nominees, but the ABA’s criteria reflect that organization’s views – and, perhaps, its biases – not the Constitution’s requirements. As for the “role” of the justices, and of the Court, it is to decide “cases and controversies” within the Constitution’s grant of judicial power. How the Court and the justices should exercise this role, the methodology and standards they should employ, and the deference they should accord to legislatures and other government officials are all hotly disputed.

What is notable about Elena Kagan's past that factors into her nomination, as cause for confidence or concern?

It is notable – but not, in my view, necessarily a cause for concern – that she has never before served as a judge. It might be more of a cause for concern that she has very little practice experience outside the politically charged context of the Clinton White House’s policy team. That is, one might worry that, because her practice experience is primarily that of a political partisan, she might have some difficulty in making the turn to a more judicious, neutral approach to controversial legal questions. She does, however, have an impressive record as a law teacher, legal scholar, and law-school administrator. Whether this work provides good training for judicial service is an interesting question.

Elena Kagan is very young for a Supreme Court nominee, and since Justices are appointed for a life term, she may have enormous impact on the future of Supreme Court decisions. What can her past actions and her testimony in the recent days tell us about how she may use her influence on the Court?

Actually, the Constitution says that justices serve “during good behavior.” This means, in effect, that they have life tenure, but it should be remembered that they can be removed through impeachment. That said, it seems clear that Kagan would, if confirmed, serve for many years on the Court, and play an important role in shaping the Court’s decisions and doctrines for decades. We know enough about her views – not only from the hearings, but from her scholarship, other writings, and work history – to be confident that she will not only be an amiable and intelligent public servant, but also a reliably and consistently “liberal” or “progressive” vote on the Court. She will, as a general matter, allow Congress to exercise broad regulatory authority over economic matters and will, as a general matter, be skeptical about legislative actions that, in her view, infringe on individuals’ rights (as she understands them).