Polk Law Blog

This was going to be a Fourth of July post, but I got sidetracked.

I was on my way home after a deposition in late June or early July during the confirmation hearings for Elena Kagan. WMNF in Tampa was broadcasting audio from the hearings. I happened to catch an exchange with Republican Senator Coburn from Oklahoma. Confirmation hearings are highly politicized affiars, where the questions aren’t really questions and the answers aren’t really answers. A video and transcript of the entire exchange between Coburn and Kagan is online at Senator Coburn’s web site.

At one point, Coburn tried to get Kagan to admit that the right to keep and bear arms is a “natural” right, more fundamental than a constitutional right, and rooted in the natural rights concepts described in the Declaration of Independence. Coburn’s civics error was obvious, and Kagan insisted, correctly, that her job is to enforce the law of the United States as described in the Constitution and statutes. The Declaration of Independence does not independently establish any laws or rights.

Immediately prior that exchange, Coburn was trying to make a point that our citizens have lost confidence in the government and implored Kagan to act in ways that instill confidence in the institutions of government. Kagan responded well to this assertion, too:

KAGAN:

Senator, I guess I’ll say this to what you said, which is that I believe that confidence in our institutions is terribly important. The confidence in the Supreme Court is terribly important.

I do think that the job of a Supreme Court justice is to decide cases. And — and in deciding cases, it’s not to think about big questions like restoring American confidence, that that’s more a question and — that belongs to the members of — of — of this body.

I do think that the job of a Supreme Court justice is to listen very carefully to all arguments that are presented. And that means all arguments. And that’s what I’ve pledged to do and that’s what I will do if I’m…

But this is the exchange that struck me most:

COBURN:

Some of my colleagues may disagree, but I’m traveling all over this country today and I see something I’ve never seen in my 62 years of life: an absolute fear that we’re losing it, that our institutions are failing us, that we’re ignoring the basic document that combines us and puts us together, and that with the abandonment of that, we’re liable to lose a whole lot more than just our short-term gains and income.

And it’s a real problem. And it’s what — you know, the fact is, is today our kids’ future has been mortgaged, and the confidence that we can get out of that is waning, and that we need to build that back up.

So, you know, it’s just a plea for you to look at as you become a justice, if you do, that it’s not just a — the Constitution, it’s what was the Constitution intended to be.

It’s my appeal for you to go back and look at the Federalist Papers and what are — I — I thought they had tremendous wisdom.

They weren’t — they didn’t get it all right, but they sure got a lot of it right, and the proof’s in the pudding of where we are today. Let me move.

KAGAN:

Senator Coburn, I — I said in my opening statement that I was only going to make a single pledge, and that was the pledge that I made in my opening statement, but I’ll meet you another. I’ll re- read the Federalist Papers.

If Elena Kagan and Senator Coburn agree on something, who am I to challenge it? Now that Elena Kagan is now Associate Justice Kagan, her pledge is one we should all consider: go read (or re-read) the Federalist Papers. And if your memory of the Constitution is shaky, you would be wise to begin there.

Incidentally, the pledge she made in her opening statement was this:

I will make no pledges this week other than this one — that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law. (source: NPR)

When was the last time you read the Constitution in its entirety? Ever read the Federalist Papers? As for me, I probably have not read the Constitution in full since law school, but I have read most of it several times over since then. I have read portions of the Federalist Papers, but never the whole collection. Time to start reading.