Comments on Kagen Confirmation Hearings
Posted on July 1st, 2010 by bunilaw
This comment is related to constitutional law rather than tax. However, constitutional law underlies all areas of law, including tax law.
On Tuesday June 29, Senator Grassley quoted roughly from the Declaration of Independence to the effect that we are all endowed by a creator with certain rights. He also quoted from a Supreme Court case (Heller) that decided an individual right to bear arms applied against the federal government. A more recent case (McDonald) decided an individual right to bear arms also applies against the states. (That means that within limits states have to let individuals have guns and that courts will give a hard look at how states limit that right) . Senator Grassley quoted from Heller suggesting that there was “always” an individual right to bear arms.
With that background Senator Grassley asked Solicitor Kagan, in effect, if she believed an individual right to bear arms existed before the Constitution or was given to us by the Constitution. Senator Grassley then explained the importance of the question as follows: “If we’re endowed by our Government with certain rights, the Government can can take them away from us, whereas if we possess them ourselves… then the Government can’t take away something that’s inherently ours.”
Senator Grassley’s presentation was a bit cantankerous and confused, and Solicitor Kagan understandably appeared stumped before answering that as a judge her role is to look at the Constitution. That’s true, but Senator Grassley is also correct that in looking at the Constitution, one thing we should consider is whether a right has an established tradition.
Solicitor Kagan’s answer missed a chance to educate Senator Grassley, who is not a lawyer, as well as other members of Congress and the public about the nature of our Constitution. Once Senator Grassley explained his concern about the Government taking rights away, she might have said: “Senator Grassley, the Constitution does not come from the Government, the Government comes from the Constitution. If the Constitution gives an individual a right, the Government can never take it away. It’s the Court’s role to make sure of that.”
The confirmation process is extremely uncomfortable for any nominee, so it’s not surprising that we can come up with better answers now than the nominee could under stress. But in other statements Solicitor Kagan demonstrated a lack of coherence when talking about the law.
For example, she repeatedly used the words “binding precedent” and “settled law” interchangeably when speaking about how she would treat past decisions of the Court. But these concepts are not interchangeable. The legislative and executive branches of government, and all lower federal courts, are bound by Supreme Court decisions. But the Supreme Court is never bound by its past decisions.
The principle of stare decisis or settled law, is a policy the Court is said to follow. But because stare decisis tells you not to correct something that’s wrong, it’s an open question among Supreme Court justices and legal scholars whether stare decisis makes sense, or, if it does, to what extent and how it should be considered.
We assume Solicitor Kagan’s nomination will be confirmed. All Supreme Court justices learn and develop once they are on the Court and subject to the demands of the role. We wish her the best of luck and look forward to seeing her develop as a Supreme Court justice.
The exchange between Senator Grassley and Solictor Kagan can be viewed here:
http://www.youtube.com/watch?v=z2Jj-a9SK3s&feature=related
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