Live Blogging the Kagan Confirmation: Day Four
Brian Walsh /
7:30 Alt on Kagan’s Activism and Willingness to Interpret the Constitution based on Foreign Law
Robert Alt entered into the record a written statement in support of his testimony before the Senate Judiciary Committee this evening. Alt’s statement explains why Kagan’s activism calls into question her fitness for a lifetime appointment to the highest court in the nation.
The key question for any nominee is how will they approach the judicial process—what is their judicial philosophy. There is a reason that critics of the Roberts Court have chosen the nomenclature of activism, for that term embodies precisely how a judge should not carry out their duties. What a judge should do is interpret the Constitution and the law as it is written, not as they would have written it, nor according to how foreign nations would interpret it. To do so, a judge must seek to apply the text according to its plain and original meaning. This is not easy. There are sometimes real disagreements. But originalism and textualism are truest to the enacted law, and these interpretive methodologies reduce the risk that the judge will simply use the interpretive process as pretext for asserting preferred policy biases as law.