The Nomination of Elena Kagan: Opening Salvo from the GOP

As expected, The Grand Old Party has begun to opposed the nomination of Elana Kagan for SCOTUS.  This shouldn't be surprising in the partisan climate of the senate, but here are the first two GOP law makers to come out against her nomination.

Sen. Jim Inhofe (R-OK), the arch-conservative leader of climate change deniers, wasted only 6 hours before officially announcing his opposition to Elana Kagan.  6 hours?!  yeah, that was a fair judgement.  I thought the Republicans couldn't read that fast, at least according to the likes of Michelle Bachmann, who wanted 3 months to read the Health Care Bill.  This is also the same Senator who refused to even meet with now sitting justice Sonia Sotomayor.  So, no one should be surprised.

The Senator's reasons for opposing her nomination are either incredibly either incredibly one dimensional or he is just making stuff up to justify his political posturing.  I wouldn't be surprised by either.  Inhofe claims that he is opposing her nomination because she kicked military recruiters off campus when she was Dean of Harvard Law School.  She did so because of the military's discriminatory policy toward gay and lesbian service members.  She also joined an unsuccessful law suit against the Soloman Amendment, forcing college campuses to keep their military recruiters of risk losing federal funds.  Apparently this makes Kagan "Unfit to serve on the nation's highest court."  If anything, it seems to me that she is MORE fit to be on the court because of her opposition to discrimination and federal control of higher education.

Sen. Jeff Sessions (R-AL), ranking member of the judiciary committee, also appears to be hedging his bets against Elana Kagan.  According to the same article, Sessions has refered to Kagan as an "activist," who will be difficult to confirm due to her lack of a judicial record.  If she doesn't have a judicial record, how on earth could he know she would be an "activist" judge?  (we'll skip the process of defining what an "judicial activist"really is for the time being)  At any rate, let's address the issue of experience.  What is the real difference between being a professor (or Dean) at a Law School and being a judge?  And how does that relate to the Supreme Court?

First question.  Being a professor in any capacity is about CREATING knowledge and building new interpretations that might provide a better understanding of the law, while being a judge is about APPLYING knowledge only when questions are brought before them (often dealing with statutory law rather than constitutional law), with the power of interpretation being almost exclusively held by the appellate courts. In short, professors are PROACTIVE in legal interpretation, while judges are REACTIVE in judicial interpretation.

Second question.  It should be pretty clear how this relates to the courts.  Unlike normal judges, justices on the supreme court are probably closer to law professors than they are to the traditional judge.  Justices on the supreme court make sweeping and binding interpretations about the constitution.  Even though they are reacting to an issue brought before them, they have tremendous control over which issues to grapple with in a given year, in the same way that professors will choose a field or sub-field in which to write about.  This is also the level of the judiciary where law is CREATED (and it is created, anyone who says only the legislature "creates" law is a fool who doesn't properly understand the constitution or our government).  The appellate courts also create law, but most of their major decisions are reviewed by the Supreme Court, thus making this court the final arbiter on the creation of new and binding law.

Therefor, a law professor may actually make for a better more proactive Justice on the supreme court.  Her experience as a creator of knowledge is likely to result in more creative and innovative decisions, her experience in government suggests she will have a strong grasp of constitutional principles as they relate to governmental powers and authority, and her lack of experience as a judge frees her from the dogmatic procedural programming that, while helpful for a judge, may not be helpful for a Justice.

Common Sense