Kagan pick is chance for 'national conversation' on role of judiciary, says law professor

Washington D.C., May 13, 2010 / 04:03 am

Supreme Court nominee Elena Kagan has intellect and integrity, but she needs to answer questions about particular legal issues such as abortion, marriage and the role of religion in public life, Princeton law professor Robert P. George commented on Monday. He described her nomination as a chance for a “national conversation” about the judiciary.

Writing in a Monday commentary at the web site of the American Principles Project, George cited then-Senator Barack Obama’s remarks concerning his confirmation votes for Chief Justice John Roberts and Justice Samuel Alito. He said President Obama was right in the past to reject the idea that intellectual ability and “personal probity” are sufficient qualifications for service on the U.S. Supreme Court.

George expressed agreement with then-Senator Obama’s demand that a suitable justice have “a sound view of the role of the courts in our constitutional system.”

The dispute then is about the proper role of the courts. George claimed that President Obama envisions courts as “agents of social change” and misunderstands the “important but limited role of judges” in the U.S. system. Judges should not “usurp” legislators’ authority.

Further, George argued, judges should not impose their own ideas about social justice or personal rights. When judges create a right to abortion, redefine marriage, or drive religion from public life, they “betray the Constitution.”

He saw Kagan’s nomination as an opportunity for a “national conversation” on the role of the judiciary.

“To this end, as Kagan herself noted in relation to previous Supreme Court nominees, it is imperative that she answer questions about particular issues, including abortion, marriage, and the role of religious faith in American public life,” George wrote. “For her to decline to answer such questions would be not only to contradict herself but to undermine the valuable opportunity for a serious discussion of the role of courts that her nomination presents.”

Robert Peters, president of Morality in Media, on Monday also advanced questions about Kagan’s view of the U.S. Constitution as it relates to pornography and decency issues.

He asked whether she agrees with the 1973 Supreme Court ruling Paris Adult Theatre I v. Slaton, which said there is a “right of the Nation and of the States to maintain a decent society” or with the position that there is a right of pornographers and the entertainment media to “maintain open moral sewers in our Nation’s communities and homes.”

Additionally, he inquired about her position on “adult” clubs, the legal protection of minors from sexual and violent content, and the maintenance of decency and public morals.

Giving a possible insight into Kagan's political leanings is a 1980 essay written by the Supreme Court nominee that was recently republished in the Daily Princetonian.

In it, Kagan describes how she grew up on Manhattan’s Upper West Side and was crestfallen both at the defeat of feminist Democratic U.S. Senate candidate Liz Holtzman and at the victory of Ronald Reagan and other Republican candidates.

She said it was hard for her to conceive of the victories of these “anonymous but Moral Majority-backed opponents,” characterizing them as “these avengers of ‘innocent life’.” While she mentioned few specific policies, she voiced hope for “a new, revitalized, perhaps more leftist left.”