July 3, 2010
By now, the ritual by which the U.S. Senate scrutinizes nominees to the Supreme Court is so well scripted in advance that there is hardly ever any real drama. Everyone knows (or should know) who Elena Kagan is and what she represents -- liberal activism -- and she gave to her Republican adversaries the best they could hope for: an affirmation of judicial restraint and the virtue of modesty. Few if any people would expect her to apply those principles in the way that those who place primary emphasis on them would, but that's not the point. They made her pay lip service tribute to old-fashioned constitutional republicanism, allowing future GOP candidates and office-holders to quote her to advance their arguments. In sum, she held up very well under the grilling.
The Washington Post summarized the final phase of questioning, and the standard issues of abortion rights, gun rights, and gays in the military. In contrast to Sonia Sotomayor, who was extremely cautious and circumspect during her hearings last year, Kagan was relatively easy-going and somewhat more open. During the 17 hours of hearings, she avoided controversial pitfalls fairly well, but she had to face harsh criticism for some of her past actions. She defended her decision as Dean of the Harvard Law School to deny military recruiters access to the university's career center on the grounds that the military did not abide by Harvard's non-discrimination policy. She also acknowledged her "progressive" political beliefs, but insisted that they would not affect her judicial rulings. (Count me as skeptical on that one.)
On May 12 I raised the question of whether the Supreme Court is becoming too uniform even as it becomes more diverse in terms of ethnicity and gender. More specifically, most recent justices are part of the "Eastern Establishment," and as an example of that, Elena Kagan is a Mets fan, whereas Justice Sonia Sotomayor is a Yankees fan. See my baseball blog post.
This past week, the Supreme Court issued a ruling that for the first time extends explicit coverage of the Second Amendment to state and local governments. It reaffirms and strengthens the 2008 District of Columbia v. Heller ruling, and essentially neutralizes the ban on handguns enacted by Chicago and other major U.S. cities. It never ceases to amaze me that many people still resist the idea that ownership of firearms is a basic constitutional right. That doesn't mean that the right is not qualified in some way, as just about any right is, of course. It simply means that the right is an essential, unalterable underpinning of what keeps our society united in respecting the rule of law and the autonomy of free individuals. See the Washington Post.
The constitutional principle at issue here is "incorporation" of the Bill of Rights into the 14th Amendment, which explicitly guaranteed equal protection under the law for all U.S. citizens, including former slaves. Before 1868, there was a very strong presumption of state sovereignty, and prohibitions and rights spelled out in the Bill of Rights were held to apply exclusively to the United States (Federal) government, not necessarily to the states. During the late 19th and the 20th Centuries, the first ten amendments to the Constitution were reinterpreted in such a way that states had to abide by them. The only amendment which was not "incorporated" was the Second. Now it is. And yes, this will be on the final exam.
While I was in Washington a couple weeks ago, I took this photo while I was driving past the Supreme Court building, which is appropriate for this blog post:
Sixteen marble columns at the main west entrance support the pediment. On the architrave above is incised "Equal Justice Under Law" Capping the entrance is a sculptured group by Robert Aitken, representing Liberty Enthroned guarded by Order and Authority. On either side are groups of three figures depicting Council and Research which Aitken modeled after several prominent individuals concerned with the law or the creation of the Supreme Court Building. At the left are Chief Justice Taft as a youth, Secretary of State Elihu Root, and the architect Cass Gilbert. Seated on the right are Chief Justice Hughes, the sculptor Aitken, and Chief Justice Marshall as a young man.
Democratic Sen. Robert Byrd passed away earlier this week, and flags all across West Virginia were at half mast as an expression of mourning for him. President Obama and many other dignities attended the memorial service for him in Charleston on Friday. (Coincidentally, I happened to be in West Virginia while the service was taking place.) In West Virginia, where just about every other highway, bridge, or public building is named after Robert Byrd, people are in mourning. For many of them, all that matters is that he "brought home the bacon" to the Mountain State, but there is also a recognition that Byrd represented a genteel and thoughtful statesmanship that has passed by the wayside. For local press coverage of Byrd's life and the memorial services in his honor, see the Charleston Gazette. It mentions the fact that Byrd joined the Ku Klux Klan in 1942, but left it ten years later, saying that it was a "major mistake." Indeed. Byrd was first elected to the U.S. House of Representatives in 1953, and six years later won election to become a U.S. Senator.
In the Washington Post, David Broder paid tribute to Byrd's public service, and to his persistent emphasis on striking a balance between extreme tendencies in politics. From his studies of the ancient Roman Republic, Byrd became convinced that
in any republic, the role of the Senate is an essential counterbalance to the more populist instincts of the House and the inherent imperiousness of presidents.
Even though Byrd was often derided as the "king of pork," Broder wrote that he "really did evoke what made the Senate great."
Personally, I was offended by Sen. Byrd's bitter denunciation of the U.S. liberation of Iraq in 2003, calling it imperialistic. I know he had good reasons for his position on Iraq policy, but his harsh and inflammatory words undermined U.S. will and prestige at a critical moment. Nevertheless, Byrd's love of the U.S. Constitution, and his devotion to the cause of limiting government power, are worthy of high praise. Not many people in the Democratic Party see things that way any more, which is a terrible shame. Some people wonder whether Byrd was related to the Byrd dynasty of Virginia, in particular former governor and senator Harry F. Byrd Sr. and former senator Harry F. Byrd Jr. Interestingly, Byrd was adopted as a child by his aunt and uncle, and his name was changed from Cornelius Calvin Sale, Jr. after his mother died in the great influenza epidemic of 1918. Byrd endured many hardships while he was growing up, and he is a classic example of how adversity helps to mold strong character and leadership qualities.