During the recent Senate
confirmation hearings on Elena Kagan’s nomination to the United States Supreme
Court, people from both major political parties expressed doubts about the
process. Since 1987 and the vicious attack by the Left on conservative legal
expert Robert Bork, the hearings have become intellectually vacuous, scripted,
and predictable. Many Senators complain that they learn little from them; in
1995 Kagan herself called the hearings a “vapid and hollow charade”. Kagan
revealed little more than that she was glib and charming; Sonia Sotomayor, President
Obama’s first nominee, waltzed successfully through the hearing process in the
same way.

The nominations are deeply
involved in politics, of course. Most knowledgeable people understood that
Kagan and Sotomayor were named because they were liberal and female. And
Democrats had the votes in Congress to do as they pleased. The political angle
is reflected in public opinion as well. During the Kagan hearings, a Fox News
poll revealed that 64 percent of Democrats would vote to confirm her, and 61
percent of Republicans would not. The independent vote was almost evenly split.
(But let us not forget that the general public knows little about politics. Twenty
percent of those describing themselves as independents were undecided. When
Elena Kagan’s name was presented without description, 40 percent of voters
interviewed said that they had never heard of her.)  

Beyond the charade of the
confirmation process, however, lie several questions about the very nature of
the Court and the future of this nation that we seldom confront outside sophisticated
journals and the college classroom. Here are five.

In the first place, why should the American people be ruled by nine
unelected lawyers? The Founding Fathers, as every high school student should
know, did not even envision the concept of judicial review. That came with
Federalist John Marshall. From the Progressive Era in the early 20th century,
and especially after World War II, the Court transformed itself into the
supreme authority in virtually all areas of American life. Congress has the
constitutional authority to limit what the Court can do but fails to take such
action. Why?

Second, why does the
membership of the Supreme Court fail to reflect the entire nation? Not a single
member is a Protestant. (If the Catholics on the Court obeyed the teaching of
their Church, they could overturn much of the leftist agenda now dominating
American culture.) With the retirement of John Paul Stevens and the seating of
Kagan, the justices will be graduates of only two law schools. The only
African-American on the Court holds conservative views that are rejected by most
American blacks. The American Indian community has formally requested

Third, in the hearings
we are told in grave sermons about the necessity of an objective judiciary
based solidly on the Constitution. Every nominee expresses great respect for
the concept of law as opposed to mere opinion. But isn’t all of this
disingenuous? Justices repeatedly, often passionately, vote on critical issues
in ways that predictably express their personal and ideological beliefs, overturning
and creating (e.g. Roe v. Wade) laws as they please. Was, say, William O.
Douglas a political neutral who spent much of his time studying the desires of
the Founding Fathers? Hardly. Does Elena Kagan take an objective or neutral view
of, say, abortion? Of course not. So why doesn’t somebody do something? In the
Age of Obama, aren’t we all supposed to favor change?

In the fourth place, the Court makes its decisions in private. The justices
are not only unelected but work in secret. Shouldn’t the deliberations be on C-Span?
What sort of republic would willingly permit such undemocratic procedure? The
media, always eager to crusade, says nothing. Why not?

Fifth, the Court is
without term limits. Today, Justices Bryer, Ginsburg, Kennedy, and Scalia are
over 70. John Paul Stevens retired recently at 90. Why should membership on
such a crucial body be for life?

The short answer (these are
admittedly all short and partial answers) to the first question is simply that every nation and organization needs a
person or a body of people that can settle issues once and for all, a place
where, as Harry Truman put it, the buck stops. The alternative is chaos often
followed by violence. While Americans want nothing to do with kings or
emperors, we, too, need a source of final authority. Think of the mayhem that
might well have occurred following the election of 2000 without a Supreme Court
to halt the shenanigans going on in Florida. The Court continues to play this
role because it works, and we are a practical people. We’ve had our Civil War
and are now content (at least the vast majority of us) to work together as a
single nation under law, as defined by the Supreme Court.

As for the second question, it seems clear that
the entire process for selecting Court nominees is based on the elitist myth of
“the best and the brightest.” One would think that this concept had
been discarded following the Kennedy-Johnson years, but it lives on from Boston
to Washington DC and is especially strong in the major mass media. If Elena Kagan
had graduated from, say, the University of Oregon, she would not have been
considered–no matter how liberal, brilliant, knowledgeable, or personable. By
definition, to the inner ring she would have been a yokel.

Third, legal objectivity
is a mixture of fantasy and rhetoric. The Right preaches fidelity to the
Founding Fathers, claiming itself more objective than liberal opponents. The
Left speaks constantly of “social justice” and “rights,”
pursues its own agenda, and rarely if ever admits that it is doing anything that
clashes with reason, history, or the Constitution. While elitist, the process of
membership on the Court is more about ideology than anything else. If you win
the election and have the political power, you will get a Supreme Court Justice
who shares your views. This has little or nothing to do with objectivity. We live
by such myths. There appear to be no reasonable alternatives.

As for number four, there are very good reasons to
demand public access to internal Supreme Court debate. But we fail to pursue
them because of our desire to avoid contention and disharmony. The decisions
themselves reveal a great deal of what was said in the deliberations, much of
it in strong language. Again, we let the robed lawyers quarrel privately
because the process works. We do not want to see the Wizard of Oz behind the

Fifth, term limits
should be applied to all political offices. We don’t achieve this popular goal
because the politicos themselves would have to write the legislation and put
themselves out of work. Court members do not see themselves as political, of
course, and in any case they can point to Article III of the Constitution which
fails to mention term limits. The Constitution could be amended to force
justices to retire at a certain age. But we don’t like to rock the boat. Our
system works. For this same reason we have chosen not to hold another
Constitutional Convention and straighten out such irrational matters as having
two Senators from California and two from Rhode Island. Aberlour’s Law number
44: “Inertia makes the world go ’round.”  

So Elana Kagan goes to the
Supreme Court, and all eyes are on the election of 2012. Politics defines law. Do
you have a better, more practical suggestion?

Thomas C. Reeves writes from
Wisconsin. Among his dozen books are Twentieth Century America: A Brief
History, and biographies of John F. Kennedy, Joseph R. McCarthy, Fulton Sheen,
Walter J. Kohler, Jr and Chester A. Arthur.

Thomas C. Reeves writes from Wisconsin. Among his dozen books are Twentieth Century America: A Brief History, and biographies of John F. Kennedy, Joseph R. McCarthy, Fulton Sheen, Walter...