We Know Stevens, But What Do We Really Know About Kagan?

Deborah O'Malley /

Many who advocate for the appointment of originalist judges believe that the Court will not be worse off when Justice John Paul Stevens is replaced.  After all, who could possibly be more of a liberal activist than the leader of the Court’s liberal bloc, Justice Stevens?

This mode of thinking is grossly mistaken.

Though Justice Stevens was certainly no originalist, there were some areas where his legal analysis was reasonable: certain elements of criminal law and election law, for example.

While Stevens was disappointing in Eighth Amendment cases, he could be relied upon for good opinions in Fifth Amendment Search and Seizure cases.  As Jack Park has demonstrated, Justice Stevens was reasonable in giving proper discretion to law enforcement officials in the arrest stage of criminal procedure.

Hans von Spakovsky has pointed out that Stevens was restrained in the voting rights context as well.  In the landmark 2008 case of Crawford v. Marion County Election Bd., he broke with his liberal colleagues and upheld Indiana’s voter ID requirement as constitutional.  In his majority opinion, he acknowledged the “flagrant examples of voter fraud” that justified the Indiana legislature’s ID requirement.  Though many elements of Search and Seizure law are less controversial and relatively settled, voter ID issues are not.  It is very likely that another voter ID case will come before the Court again during Elena Kagan’s tenure.

Thus the question is raised: how do we know whether Kagan is reasonable on these issues?

She has no judicial record by which to evaluate her methodology in any kind of cases, let alone these particular areas of election law and criminal law.  Additionally, her scholarship is scant.  The only way to know how she would approach these areas of law, then is through effective questions and answers at her confirmation hearings.

One would think that Kagan should agree to this proposition.  After all, in a 1995 University of Chicago Law Review article, Kagan advocated for robust discussion of legal issues during confirmation hearings.  She wrote, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

We will soon know if Kagan has the same eagerness to educate the public during her own hearings that she expressed in this article.

Search and seizure and voter ID may not be foremost on the Senator’s list of questioning priorities.  However, these two issues serve as examples of how individual justices—even ones who are typically activist—may be more reasonable or more radical than their liberal counterparts in some areas.  Thus senators should not cease to engage in vigorous inquiry into the issues.  They should hold her to the Kagan standard.