Legal Commentary

Goldsmith Gives It to the Judiciary Committee

By Jonathan H. Adler

Harvard law professor  Jack Goldsmith testified in support of Elena Kagan?s confirmation to the Supreme Court today.  No doubt one reason he was asked to testify is because he is a noted conservative and former Assistant Attorney General for the Office of Legal Counsel in the Bush Administration, and it?s always convenient to have a prominent legal figure from the ?other side? testify in support of a nominee.  But one thing the Senate Judiciary Committee might not have expected is how he concluded his written testimony:

It is discouraging that I feel compelled to add, in closing, that nothing in my assessment of Kagan?s suitability to be a Supreme Court Justice turns on a prediction of how she will vote on particular cases as a Justice. Many people assume ? based on her service in the administrations of two Democrat presidents, and the fact that President Obama nominated her ? that on many legal issues Kagan?s will come down on the left. It would be surprising if this assumption were not true to some degree; but I do not know it to be true. What I do know is that Kagan will be open-minded and tough-minded; that she will treat all advocates fairly and will press them all about the weak points in their arguments; that she will be independent and highly analytical; and that she will seek to render decisions that reflect fidelity to the Constitution and the laws.

The President of the United States is entitled to choose a judicial nominee whom he believes reflects his judicial philosophy; and his decision to nominate a highly qualified individual who swims in the broad mainstream of American legal life ? a description that Kagan easily satisfies ? warrants deference from the Senate. Some Democratic members of this Committee implicitly or expressly embrace this principle today but did not do so during the hearings for Justices Roberts and Alito. Some Republican members of this Committee implicitly or expressly embraced this principle during the hearings for Justices Roberts and Alito, but not today. The Democrats are right now and the Republicans were right then. But the opportunistic embrace of the principle, and the often-extremely-uncharitable characterization of the records of nominees of presidents of the opposite party, can only mean that neither side really believes in it. Such opportunism under the guise of principle is, with respect, worse than just regrettable; it damages the very judicial system the Committee is charged with nurturing and overseeing.

Miguel Estrada, a distinguished conservative lawyer who in my view was treated very unfairly by this Committee when he was nominated to serve on the federal bench, wrote to this Committee of Kagan: ?If such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we have reached a point where no capable person will readily accept a nomination for judicial service.? I completely agree. Elena Kagan is immensely qualified to serve on the Supreme Court. She should be easily confirmed.

Goldsmith is exactly right, and should be commended for his willingness to speak so forthrightly to the Committee.

Full post as published by The Volokh Conspiracy on July 01, 2010 (boomark / email).