Archives for May 11, 2010

Obama has announced his pick to fill in the vacancy on the Supreme Court: Elana Kagan.

Kagan has excellent credentials, including being Dean of the Harvard Law School. As such, it is reasonable to believe that she knows the law and legal theory. However, as critics are pointing out, she has never served as a judge and has rather limited experience as a lawyer.

Given that she has been nominated for a position as a Supreme Court judge, this is a legitimate matter of concern. After all, it is one thing to have studied and taught law as an academic subject and quite another to be a judge. To use an analogy, I have taught aesthetics for years, yet this need not qualify me to be an art critic. Certainly I know aesthetic theories and how to reason, but to actually judge art is a different matter than teaching aesthetics. Of course, this analogy can be broken by showing that judging matters of law based on academic legal experience is different from judging art based on academic experience in aesthetics.

A second concern voiced by critics is that she will be an “activist judge.” When voiced by conservatives, this really means that they are worried she will be a liberal judge. After all, these same conservatives seem to have no problem with judges that actively push or support a conservative agenda. While I have some liberal views, I am inclined to favor moderate judges. As I see it, one main role of the court is to check the executive and legislative branches and moderates seem to be better suited to this task.

A third concern voiced by critics is that she will allow her values, feelings and opinions to influence her decisions. While a judge should strive to be objective, being objective does not mean being without values, feelings, and opinions. Also, the law does not interpret itself (if it did, we would not need the court). Rather, it is interpreted in terms of values. Once again, when conservatives complain about values, empathy and so on, what they seem to really mean is that the person is a liberal. After all, conservatives seem to be fine with rulings and opinions that match their own conservative values. However, there is merit to the general concern-a judge, like a professor, needs to be capable of judging in an objective manner and this involves being able to control the influence of such factors.

A fourth concern is that she will not be liberal enough. This is, of course, voiced by liberal critics. While Kagan has spoken out against “Don’t Ask, Don’t Tell”, she has also taken positions that please conservatives. I actually see this criticism as a mark in her favor. After all, I favor moderate judges and if the more extreme conservatives think she is too liberal and the more extreme liberals think she is too conservative, then this is evidence that she is fairly moderate.