"The American people expect a justice who will impartially apply the law, not one who will be a rubberstamp for the Obama administration or any other administration ... " ~ Mitch McConnell (R Kentucky)I am not a fan of Elena Kagan. More precisely, I am not a fan of her nomination to the Supreme Court. I think that Obama ought to have nominated someone who might offset the ridiculously partisan gang of five right-wing justices who already sit on the court, someone who would not just vote against them, but call them out when that needs to be done (with, of course, all of the professional niceties that judicial discourse imposes). Obama would never do that. He nominated Kagan, to solidify the resolutely centrist coalition of justices who pass for "liberals" on the current court.
"Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law. . . . Over nearly 25 years, General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. " ~ Orin Hatch (R Utah)
"The worst kind of thing you can say of a judge is he or she is results-oriented. It suggests that a judge is kind of picking sides irrespective of what the law requires." ~ Elena Kagan
The problem is that no one involved in the current nomination proceedings seems able to grasp what your grandmother knows without too much thought: Kagan resembles a "progressive" only in the context of right wing judicial politics. You can find yet another example of the consistent right wing "activism" of the current court majority (for earlier ones see [1] [2]) in a recent report from the Constitutional Accountability Center. It documents the remarkable coincidence that the right wing of the court - Alito, Roberts, Scalia, Thomas and Kennedy - vote to support corporate interests in an overwhelming majority of relevant cases. (Alito virtually never votes in any other way!) Here is a summary of the results:
"To test empirically the idea that the five conservatives on the Roberts Court tend to side with corporate interests, at least more than their colleagues do, we have examined, for those cases in which the United States Chamber of Commerce participated as a party or as an amicus curiae, every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions in early 2006 through May 2010 ‐‐ a universe of 53 cases ‐‐ and we tracked the votes of each Justice in each of the cases. Over that period, a cohesive five‐Justice majority on the Court has produced victories for the Chamber’s side in 64% of cases overall, and 71% of closely divided cases.No doubt our Republican Senators will decry the "rubberstamp" quality of that voting record! And soon-to-be-Justice Kagan will simply sit on her hands while her colleagues continue "picking sides" more or less solely in keeping with their conservative ideology.
Results
The data support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives tilting more decisively toward the Chamber’s position than the Court’s remaining justices tilt in the other direction. The members of the Court’s conservative majority (Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas) were very close together in their overall support for the Chamber’s position. Justice Kennedy does not “swing” much in business cases: he supported the Chamber 67% of the time, close to the voting pattern of Justice Alito, who had the highest percentage support for the Chamber ‐‐ voting for the Chamber’s position in 75% of the cases. This cohesion has produced an overall success rate for the Chamber of 64% (34 victories in 53 cases). The Court’s moderate/liberal “bloc” (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist: collectively, the Court’s conservative “bloc” (Roberts, Scalia, Alito, Thomas, and Kennedy) cast only 29% of their votes against the Chamber, while the moderate/liberal bloc cast 41% of its votes in favor of the Chamber.
Cases Decided by a Narrow Majority
Obviously, not all business cases are the same. Some of these cases apparently were not difficult for the Court to decide, at least in terms of the ability of the Justices to reach consensus. Indeed, more than one‐third of the business decisions we examined were decided by a unanimous Court; the Chamber won 11 of those 19 cases (58%). At the other end of the spectrum, about one‐third of the cases in our survey sharply divided the Court, and it is in this subset that ideological voting is most pronounced. These cases include all of the blockbuster rulings decided during the period of this study, including Citizens United v. FEC (2010), Ledbetter v. Goodyear (2007) and Massachusetts v. EPA (2007). Of the 17 cases decided by a five‐Justice majority, 12 (71%) resulted in victories for the Chamber. In these cases, the conservative bloc voted for the Chamber 84% of the time, compared to only 15% for the moderate/liberal bloc. Strikingly, in these close cases, Justice Alito never cast a vote against the Chamber of Commerce’s position."
This pattern of voting will surprise no one. Not grandma, anyhow. The study documents the pro-business voting pattern of the right leaning justices and it suggests that while their voting is extreme and partisan, the "liberals" tend to be centrist. Once again we can finger the Republicans as the source of political extremism. My point is not to suggest that we should expect the right-wingers to vote any other way. What we should expect is for a putatively "progressive" president to appoint a progressive justice. Everyone else is playing politics; why can't Obama advance a progressive agenda? Hint: Because he is not a progressive.
