Former Attorney General Edwin Meese says Supreme Court nominee Elena Kagan’s faithfulness to the Constitution cannot easily be assessed because she lacks a judicial record.
And that makes it incumbent on the Senate Judiciary Committee to ask her “extensive questions” about her views of the high court before voting to confirm her, Meese declared.
He also stated that judicial appointments “should always be a criterion by which presidential candidates are measured at election time.”
Meese served as attorney general under President Ronald Reagan from 1985 to 1989, and today he is Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation.
Meese joined several other panel members in an online Town Hall meeting sponsored by the Heritage Foundation on Tuesday afternoon, and fielded e-mail questions about Kagan.
Asked what are some of the questions the Senate should ask Kagan during confirmation hearings, Meese responded:
“The Senate should ask her extensive questions about her understanding of the role of a judge, and the constitutional role of the Supreme Court. Specifically, they should inquire as to her understanding that a justice should interpret the Constitution as it reads and statutes as they are written by Congress, without substituting the justice’s own policy preferences or ideas for what the documents actually say.
“Specifically: Whether foreign law should be used to interpret the U.S. Constitution; whether the Supreme Court should intrude into issues of conduct of war, which the Constitution leaves to the elected branches and the president.”
A questioner asked: “Is this truly the best and most qualified juror the administration could find throughout our land? Is her lack of record the biggest thing going for her during the hearings?”
Meese answered: “That’s a value judgment that the president has to make, since he and his staff alone know who would be under consideration.”
Another questioner asked: “What's to keep her from giving answers that she thinks they want to hear rather than answers that will tell us more about how she really thinks?”
Meese: “That’s a good question. The senators have a duty not only to hear her answers to the questions, but to make an assessment as to her integrity in following those answers if she is confirmed for the Supreme Court. It is essentially a matter of the senators evaluating her character and her trustworthiness.”
Meese was asked if Kagan should be questioned about the constitutionality of the requirement in the healthcare reform law that Americans must purchase health insurance.
“It’s an important question, but it has to do with a matter that she may well be called upon to judge, if she’s confirmed, so it would be legitimate for her not to answer,” Meese responded.
Meese was asked about the constitutionality of filibustering to prevent a Supreme Court nominee from being confirmed.
“It is not unconstitutional to filibuster a candidate,” he noted.
“But the tradition has been that if a president nominates a qualified candidate (his or her qualifications, including demonstrated faithfulness to the Constitution and understanding of a role of a judge, as well as the Constitution with its limits on power and authority), it is unlikely that a filibuster will be attempted.”
One questioner stated that the country has suffered from “judicial activism” for many years, and asked: “How and why did it become constitutional for ‘lifetime’ appointments to the Supreme Court? With the legislative and executive branch, we can impose term limits at the ballot box.”
Meese said: “The Founders stated that the judiciary should be appointed during ‘good behavior.’ In practice, this has meant lifetime appointments. The purpose was to insulate the court from politics and the whims of the moment at any particular time.
“It is true that this has not always prevented judicial activism, but it has been reasonably effective in support of a judiciary that is independent. There are other ways to combat judicial activism, including threat of impeachment, adverse public opinion, congressional legislation that seeks to correct judicial excesses, etc.
“The ultimate prevention of judicial activism lies with the quality of a president’s appointment, and he should be held accountable. Judicial appointments should always be a criterion by which presidential candidates are measured at election time.”
Meese was also asked how Kagan’s faithfulness to the Constitution can it be demonstrated if she has no judicial record.
He said: “It can be demonstrated by a nominee’s past writings, speeches, teaching, etc. It can also be ascertained during extensive questioning by senators during the Judiciary Committee hearings and by individual interviews with the nominee.”
Panel member Robert Alt, a Senior Legal Fellow at Heritage and Deputy Director of its Center for Legal and Judicial Studies, fielded this question: “As someone with no judicial experience, how will her confirmation process differ from that of an experienced juror?”
Alt said: “There will be a much greater need for senators to ask and get actual answers to questions, rather than the usual, carefully crafted evasions. The complete lack of a judicial record means that senators have very little in the way of guideposts to determine how it is that a Justice Kagan would approach the law.”
A questioner asked: “Given what we've learned about this nominee, is there any chance that her nomination can be blocked?”
Tripp Baird, the Director of Senate Relations at Heritage Action, responded: “There is a chance, because there really is not much known about the nominee. It is important to understand that it is very early in the process and the ultimate question will be whether Senators are satisfied with the testimony of Solicitor General Kagan.”
One questioner claimed to have found “disturbing connections” between Kagan and groups such as Acorn, Code Pink, La Raza and others, and asked: “How intensely should these types of connections be scrutinized?”
Baird answered: “If the nominee has connections to any of these controversial groups, there should be intense questioning.
“Based on past precedent, connections to groups and the activities of these groups are in the purview of the committee questioning and should thoroughly be vetted.”
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