The ongoing hearing of the Senate Judiciary Committee in which Elena Kagan has been answering questions this week is a wonderful example of political theater of the absurd. As we talked about on the radio program last night, these hearings have of late, become exercises in what can only be called, well, lying. For example, when she was sitting for her hearing, now Justice Sotomayor referred to the Heller decision on DC gun law as "settled law" and furthermore expressed acceptance of an constitutionally protected individual right to own a gun. Just months AFTER this experience, she had a chance to back those statements up--the recently decided 2nd Amendment case on Chicago's restrictive gun laws. Well lo and behold, Justice Sotomayor--in her dissenting opinion, was simply UNABLE to find ANY suggestion in the Constitution or in the writings of the framers that gun ownership under the 2nd Amendment was an individual right.
Does this surprise me? No. Did I know that when she said what she did in her hearing is was BS? Yes. But this is what we have come to expect that our Supreme Court nominees will do. No different for conservative jurists, gang--they go up there are refer to Roe v. Wade as "settled law" and express great admiration for "stare decisis" which grants great weight to precedent. They go tell their lies, they get confirmed, and then they go to the Supreme Court and vote as we all knew they would.
So why go through this theater of the absurd? Why stage a Stalinist "show trial" in which everyone plays their ridiculous part? How is our Republic ennobled by this process? Is this what the framers intended? I think not. Which is why I would want to see a nominee sit up there one day (not Kagan, as her record is too thin to pull this off) and say the following:
"Mr Chairman. I've been a federal judge on the US Court of Appeals for twelve years, was a federal prosecutor for 10 years, and have argued 27 cases before the Supreme Court, winning 23. You have before you some 187,000 pages of my writings over the years. You can justly discern my judicial philosophy from those writings and reach your own conclusions. As for the concept of "stare decisis", I respect the decisions of past Supreme Courts exactly as I respect decisions of courts inferior to the Supreme Court. That they were reached by reasonable people with the facts and the law before them---that they did the best job they could--and that ultimately, since the Congress has not removed from the Supreme Court the capability of overturning previous decisions, I treat them with no more respect than I would the decision of an appeals court on a case currently being reviewed. Dred Scot and Plessy v. Ferguson stand as stark reminders of the limits of stare decisis. And so with that, I request to be excused from this proceeding as I do not intend to answer a single question. Thank you."