Today the Senate confirmed Elena Kagan to the United States Supreme Court. Yet the vote breakdown is telling. Even with a Democrat stronghold in the Senate, Kagan received more “no” votes [37] than any Democrat Supreme Court nominee in 100 years, and with bipartisan opposition to top it off. With liberals expected to loose seats in the Senate this November, the number of senators who are likely to seriously scrutinize Obama judicial nominees will only increase.
This should send a resounding message to President Obama, who may well have one or more vacancies on the High Court to fill during his time in office: nominees who are even more extreme than Kagan—such as Harold Koh or Goddwin Liu—will not glide through.
Now that Kagan is on the bench, time will only tell whether she will live up to her words from her confirmation hearing. Though she was evasive when addressing most substantive issues, she made a number of promises about how she would approach the law as a justice.
For example, she stated that she acknowledged McDonald v. Chicago and Heller v. DC—the most recent Second Amendment decisions—to be “binding precedent.” Heller confirmed that the right to keep and bear arms is an individual right, and then McDonald confirmed that the states must recognize this right. While Kagan would not state her opinion on whether these cases were rightly decided, she promised to give them the full respect that settled law deserves.
Yet we heard similar statements from Obama’s last nominee, Sonia Sotoamyor, who stated in her confirmation hearing that she fully “understands the individual right [to keep and bear arms]” that the Supreme Court recognized in Heller. Yet, in the McDonald case, she joined a dissenting opinion stating that, “Nothing in the Second Amendment’s text…seeks to protect the keeping and bearing of arms for private self-defense purposes.”
Similarly, Sotomayor and Kagan both stated that foreign law should not serve as precedent for judges when interpreting the United States Constitution. And yet Sotomayor recently joined an opinion that cited foreign law as partial justification for striking down life without parole sentences for juvenile non-homicidal offenders.
Americans who expect the Court to protect their constitutional rights can only hope that Kagan will not follow in Sotomayor’s
