What do conservatives mean when they speak of “judicial activism”? (Hint: It doesnt mean overturning clearly wrong legal precedents, nor does it mean overturning laws enacted by Congress that contradict the clear text ofthe Constitution.)
Was the president right to accuse this Supreme Court of giving undue political influence to corporate special interests? (Hint: Not unless you believe theres a principled reason to give General Electric and Disney the unlimited right to make their opinions heard but not the NRA or NAACP.)
Should judges follow the presidents advice to give special consideration to disadvantaged parties in legal disputes? (Hint: If they do, its far from clear that the truly disadvantaged in society wont be worse off in the aggregate.)
We should focus on these and similar questions as the Senate considers the nomination of Elena Kagan, who as I expected was tapped by President Obama to replace John Paul Stevens on the Supreme Court. Notwithstanding her lack of judicial and litigation experience (Kagan almost certainly doesnt meet what she herself described as the “threshold requirements” of the job), I wouldnt expect her to follow her own advice and engage with Senators “in meaningful discussion of legal issues.” What we will see is hemming and hawing and, absent a heretofore unknown revelation, a confirmation. But that doesnt mean we cant take advantage of the publics attention and help to clarify some very important issues.
Original Source: http://article.nationalreview.com/433922/elena-kagan-is-obamas-scotus-pick-now-what/nro-symposium?page=2