HRC Blog

Kagan Hearing Begins

Yesterday, the Senate Judiciary Committee began the confirmation hearings for Supreme Court justice nominee Elena Kagan.  The recent deaths of Senator Robert Byrd (D-WV) and Martin Ginsburg, husband of Supreme Court Justice Ruth Bader Ginsburg, frequented the remarks of the Committee members and loomed over the hearing.

Members of the Committee focused on several key aspects of Kagan’s nomination.  As expected, the opening statements by members of the Committee were divided on party lines.  Democrats emphasized Kagan’s boundary breaking career and her understanding of how the law affects everyday people.  She was described by these senators as “reasonable,” “practical,” “brilliant,” and “refreshing.”  Republicans focused on judicial activism and the fact that Kagan has not previously served as a judge.  In addition, they put a negative spin on Kagan’s enforcement of Harvard Law School’s anti-discrimination policy by referring to her enforcement of the policy as an “anti-military” act – something clearly not grounded in fact.

Senator Benjamin Cardin (D-MD) began his opening statement by invoking a question commonly asked by former member of the Committee, Vice President Joe Biden:  “Why is this such a big deal? Why should I care? Does the Supreme Court really impact my life or my family?”  Senator Cardin’s answer to this important question included several reasons why the Supreme Court should matter (reasons that should be particularly salient to the LGBT community):

“If you believe that you have a right to fall in love and get married to whomever you wish, you are mostly correct, but only because the Supreme Court intervened on the side of the American people when it ruled in Loving vs. Virginia that interracial couples could marry. Indeed prior to that decision, the parents of the current President of the United States and some members of this United States Senate could not have been married in some states of this Nation. If you believe that what you do in your own home, in your own bedroom, is your business and no one else's – especially not the government's – you also are correct, but only because Supreme Court decisions like Griswold v. Connecticut and Lawrence v. Texas reinforced the individual's right to privacy, keeping government out of the private consensual activities of adults. “

As demonstrated by the decisions mentioned by Senator Cardin, the Supreme Court has played, and will continue to play, an important role in promoting the Constitution’s guarantee of equality under the law.  Senator Cardin should be commended for pointing this out at the beginning of this confirmation hearing.

Kagan’s opening statement was the most anticipated speech of the day, as it was her first public opportunity to indicate what principles will guide her work as a justice.  After being introduced by Sens. John Kerry (D-MA) and Scott Brown (R-MA), Kagan explained the importance of the “rule of law” and its importance to the promotion of equality.  She stated:

“What the rule of law does is nothing less than to secure for each of us what our Constitution calls “the blessings of liberty” – those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.

[ . . . ]

The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law. It means that everyone who comes before the Court – regardless of wealth or power or station – receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.”

Kagan’s understanding of how the rule of law assists in the promotion of equality is promising; however, her understanding of equality must include equality for LGBT Americans.  As the members the Senate Judiciary Committee probe her belief system to gain an understanding of what type of justice she might be, it will be important for Kagan to elaborate on her understanding of rights afforded to individuals by the Constitution’s guarantees of equal protection and individual liberty.

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