Golly, it’s a good thing that the other eight justices don’t play politics, right? “What is the justice really trying to say,” CNN OutFront host Kate Bolduan asks about Elana Kagan’s remarks, “especially on this day?”
— CNN (@CNN) October 6, 2018
JUSTICE KAGAN: Starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who, er, found the center, who people couldn’t predict in that sort of way. … It’s not so clear that, you know, I think going forward, that sort of middle position — you know, it’s not so clear whether we’ll have it.
Let’s answer Bolduan’s question first. It’s clear as day what Kagan is doing — she’s playing politics while the Senate debates Anthony Kennedy’s successor. Kagan is lamenting Brett Kavanaugh’s nomination while assuming that he won’t bring an independent mind to the court. That’s precisely the kind of politics that Senate Democrats harrumphed about all week after last Thursday’s public hearing. In fact, it’s worse — it looks very much like Kagan’s trying to get the Senate to reject the nomination, which amounts to interference with the prerogatives of the other two branches and calls into question Kagan’s judicial temperament.
And on that note, it’s rather revealing in this clip that Kagan never considers herself for the role of the unpredictable jurist — or Sonia Sotomayor, who’s sitting next to her and never bothers to interject either. Kagan’s argument is that it should always be conservative jurists who go towards Kagan’s wing of the court, and not the other direction. Why should that be the case? Why shouldn’t Kagan take her own advice?
It’s also amusing that Kagan almost explicitly assigns herself and the other three liberal justices to the roles of predictable jurist in this statement. It’s undeniably true, but one would expect a Supreme Court justice to at least argue that she’s independent. Give Kagan one cheer for honesty, I guess, and a half-cheer to Sotomayor for not objecting to it.
Anyway, the middle of the court still exists. Chief Justice John Roberts has filled that spot on occasion, and it’s likely that Kavanaugh himself might do so a time or two as well. However, the center of the court has undeniably moved to the right, which is what Kagan’s real objection is. The fact that she’s airing that objection while the Senate is still voting on Kavanaugh’s nomination exposes Kagan as a political hack.
So which Senate Democrat quotes this tomorrow during the floor debate, while at the same time excoriating Kavanaugh for partisanship? I’m putting money on Dianne Feinstein to hit it first, but Chuck Schumer will certainly play cleanup.