Kagan: These politicized confirmations are really awful, aren't they?

I’m never sure if having the Supreme Court justices go out to speaking events in public is a great opportunity for people to learn more about the workings of the court or a political minefield waiting to blow up in their faces. A recent speech given by Associate Justice Elena Kagan may have contained a bit of both, particularly when she decided to weigh in on the nasty nature of SCOTUS confirmation battles in the Senate these days. No stranger to the phenomenon herself, Kagan referred to the toxic political climate as “unfortunate” among other things. (Daily Caller)

Supreme Court Justice Elena Kagan criticized the current state of the judicial confirmation process this week, telling a student group that politicizing nominations harms the public’s perception of the courts.

Her remarks come just weeks after President Donald Trump nominated Judge Brett Kavanaugh to succeed Justice Anthony Kennedy on the high court, setting off a generational fight over the future of the nation’s highest judicial tribunal.

“It’s an unfortunate thing, because it makes the world think we are sort of junior varsity politicians,” Kagan said of recent confirmations. “I think that’s not the way we think of ourselves, even given the fact that we disagree.”

“There is so much tit-for-tat for tit-for-tat that goes on in these processes,” she said elsewhere in her remarks. “Everybody has their list of times that they’ve been wronged. The Republicans have their list and the Democrats have their list.”

Kagan, who ran into some problems in a lower court confirmation, never directly mentioned Brett Kavanaugh by name, but it’s difficult to imagine that the current debate wasn’t on her mind. Was she in some way implying that he should be quickly confirmed? As someone who went through the same grilling herself almost ten years ago, perhaps she has a bit more sympathy for her fellow nominees.

There’s one part of Kagan’s comments where I must agree with her and another where I take issue. I concur that the current state of combative confirmations is unfortunate to put it very mildly, but it’s really a symptom of something much broader in scope rather than being the root problem itself. Judges are put through a tremendous amount of scrutiny, not so much to see if they meet the standard qualifications for the job, but to determine if any of their previous decisions give hints as to how they might rule on contentious social issues. It would be lovely to imagine that each judge approaches every fresh case with an open mind, but when politicians are the ones doing the vetting they see everything through a political lens.

I will disagree with Kagan in her opinion that the country sees them as “junior varsity politicians,” because the real criticism is applied to the President who nominates them and the senators who vote to confirm them if anyone doesn’t like the way they vote over the course of their time on the bench. Unfortunately, judges do come to their jobs with their own worldviews which are reflected in their decisions. If that weren’t the case it wouldn’t be so easy to predict how each Supreme Court ruling will turn out before they’ve even heard the case.

It’s true that we still get the occasional judge like Kennedy who splits the field depending on the topic at hand, but it’s rare. We also see the odd case where one of the conservatives will vote with the liberals (nod to the Chief Justice on Obamacare) or vice versa. But most of the time, on divisive social issues of the day, the court splits reliably along partisan lines.

Of course, when you look at from that perspective, the SCOTUS justices aren’t junior varsity politicians. They’re the most powerful politicians in the land. Perhaps Kagan was on to something after all.