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SCOTUS Hearings: Important Debate on Nature of Corporate Power; Did Kagan Engage?

Contra me, Joshua Green has a story in the Boston Globe on the importance of the Kagan hearings because of the window they opened into the new defining issue of the Court – corporate power.

For while Kagan’s fate may not be in doubt, her confirmation hearings come at a time when the court is shifting ever more firmly to the right. A clear sign of this came in January, with the decision in Citizens United v. Federal Election Commission, which allowed unlimited corporate spending in elections. Kagan herself argued the government’s case, and lost. Her views on this pivotal issue matter a great deal, because the growing power of corporations to influence government is likely to preoccupy the court for a generation. Her appearance before the Senate should occasion a national debate […]

Kagan’s arguments against this could open up a historic debate.

She came prepared to undertake it. Her opening statement in favor of “judicial modesty’’ was mostly misinterpreted as being a mere tactic to disarm conservatives. But it signaled an important jurisprudential shift. Far from submitting to her inquisitors, Kagan was deftly drawing on conservative language to implicitly criticize the activism shown in Citizens United. In effect, the balance of argument has reversed.

Michael Waldman of the Brennan Center for Justice called the Kagan nomination the first “of the Citizens United Era, as opposed to Roe v. Wade Era.”

I agree that the hearings took place along this backdrop. And to be sure, several of the questioners on the Democratic side, Al Franken and Sheldon Whitehouse chief among them, made this argument, and brought an actual debate about judicial activism in the Citizens United era. I would simply argue that Kagan didn’t tell us a whole lot in her two days of hearings about her views on this subject. She said she’d respect precedent and reject both the facile metaphor of an umpire “calling balls and strikes” as well as the doctrine of originalism.

Implicit criticisms aside, in what testimony I’ve had the chance to watch or read about I saw nothing approaching a critique of the corporatist shift on the Court. If you want to define Kagan by her enemies, the opposition of the NRA even after she said she considered Heller and the recent McDonald case “settled law” is encouraging, but not broadly so. I didn’t really get any actual expression of her views on corporate power – a lot of Al Franken’s, not hers.

Indeed, I agree with nobody so much as Scott Lemieux on the subject:

In short, after three days of hearings, I think we’ve confirmed what we already knew. Kagan is extremely intelligent and charming, and liberal in a broad sense — that is, “liberal” in a way that could describe everyone from Larry Summers to Thurgood Marshall. Where Kagan sits precisely on that spectrum is likely to remain a mystery.

Exactly, and by the time we find out, she’ll be deciding cases.

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David Dayen

David Dayen

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