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As I write this, Senators on the judiciary committee are making their opening statements while Elena Kagan sits silently, more like a prop on a stage than a nominee to the Supreme Court. Although her confirmation seems all but certain – the Democrats already have the votes lined up – there may still be some fireworks in the hearings this week.
If you tune in, watch for Democrats to use these hearings as an opportunity to turn the charge of judicial activism around on the right wing. For a generation or more, conservatives have used judicial activism as a rallying cry, attacking liberals and liberal judges for a legal philosophy that they believe has had more to do with social reform than with legal analysis. The result has been a Court that has trended steadily to the right, with the appointment of judges on the conservative flank from Republican presidents and moderates from Democrat administrations. In recent years, Democrats have started to kick back, criticizing the Court for its willingness to disregard precedence, but have so far been unable to make it stick.
There are signs that in the wake of the Citizen’s United case that may be changing. Senator Feingold directly attacked the case in his opening statement, and Senator Specter just became the first Democrat in these hearings to directly say that both liberals and conservatives have taken activist stances. Senator Feinstein also openly criticized the Court for ignoring precedence in gun control laws.
While Kagan will likely provide little ammunition, keeping her answers neutral, watch for Senators from both parties to use her as a foil in an attempt to claim or to keep the mantle of judicial restraint.
