WASHINGTON — Supreme Court nominee Elena Kagan told Sen. Amy Klobuchar today that the metaphor of judges as umpires, who just call balls and strikes, is flawed.
“I think it’s correct in certain respects, but it has limits in certain cases,” Kagan said, in response to a Klobuchar question on the topic.
Kagan said the metaphor might suggest to some that the law is a “robotic exercise… that every thing is clear cut and that there’s no judgment in the process. And that’s not right, and that’s certainly not right at the Supreme Court level.
“Judges do, in many of these cases, have to exercise judgment.”
The question today for Amy Klobuchar, Al Franken and others on the Senate Judiciary Committee was how Kagan would arrive at those judgments, and what they’d look like when written.
Klobuchar, Franken a contrast in styles, subjects
Klobuchar and Franken were a contrast in style and substance this morning.
Klobuchar focused primarily on queries about the way Kagan would make her decisions, and Kagan’s responses filled most of her question time. Franken hammered away at what he sees is a tilt by the Roberts Court in favor of corporations, and spoke for the vast majority of his time.
Kagan told Klobuchar she’d apply Justice John Paul Stevens’ maxim of understanding before opposing any argument made, and gave a window into how she’d act on the bench when telling Klobuchar that she felt the most effective arguments came when attorneys answered the questions justices posed, rather than tried to recite talking points.
“You have to answer the judges’ questions,” Kagan said. “They have your briefs, they’ve read your briefs, they want to hear you respond to their questions,” even if that means following down a rhetorical rabbit hole you as an attorney hadn’t planned on.
Franken, meanwhile, spoke at length on decisions the Rehnquist and Roberts Courts delivered that he said tilted the playing field away from individuals and toward corporations.
He blasted the Court’s ruling in Rent-a-Center v. Jackson, in which the Court allowed arbitrators to decide whether mandatory arbitration agreements were proper.
“Talk about not getting your day in court. Now you can’t get your day in court to get your day in court,” Franken said.
He then turned to corporate financing of elections in Citizens United v. FEC, questioning whether avowed judicial incrementalists Antonin Scalia and John Roberts kept to their principles.
“I don’t think Justices Scalia or Roberts adhered to their own principles. I think they legislated from the bench,” Franken concluded.
Kagan, responding to general quesitons posed by Franken, generally committed herself to a policy of incrementalism.
The ‘Twilight’ of decision making
Neither Klobuchar nor Franken have officially signed on to back Kagan, though both are expected to do so. A second round of questions continues today, after which witnesses called by both Democrats and Republicans will testify.
Hearings are expected to conclude before the July 4 recess, and the Senate is expected to vote on Kagan before leaving for the month-long August recess.
During a brief break after the first round of questions concluded, Klobuchar said Kagan’s response to her question on balls and strikes was the most illuminating, and suggested that most of the questions Kagan could be posed have now been asked and effectively answered.
However the most memorable question asked today may be the less-serious exchange she and Kagan began with.
Klobuchar’s daughter Abigail and some friends caught the midnight opening of the new “Twilight” movie, and Klobuchar told Kagan she would resist the temptation to ask the question ringing through the halls of middle-schools across the land — Edward or Jacob?
“I wish you wouldn’t,” Kagan said laughing, before dodging that preteen quagmire when Klobuchar jokingly noted that she couldn’t comment on future cases.
