On the third day of the Supreme Court confirmation hearing, Senator Ted Kaufman (D-DE) questioned Solicitor General Elena Kagan on the current Court's pro-business slant in its handling of recent business cases. Kaufman has long feared that the Court has approached these cases in a "results oriented" fashion that risks damage to its credibility as an institution. Kaufman emphasized cases such as Leegin and Citizens United, each of which overturned nearly a century of statutory and case law, and Exxon v. Baker, which sharply limited the availability of punitive damages to the victims of environmental disasters under maritime law. Kaufman also questioned Kagan on charges by some conservatives that Kagan is, herself, "too political".
"Some of my colleagues have suggested that you're too political because of your service on the Domestic Policy Council," said Kaufman, who cited the equally "political" background of such renowned Justices as Sandra Day O'Connor.
"As a judge, you are on nobody's team," General Kagan responded. "As a judge you are an independent actor, and your job is simply to evaluate the law and evaluate the facts as best, as most prudently, as most wisely as you can. When you get on the bench, when you put on the robe, your only master is the rule of law."
Citing the majority rulings in Citizens United and Leegin as classic examples of "results-oriented" judging --where the Court appears to manipulate analysis of the case in order to reach a desired result-- Kaufman asked Kagan for her general thoughts on such action.
"The worst thing that you can say about a judge is that he or she is results-oriented," said Kagan. "It suggests that a judge is kind of picking sides irrespective of what the law requires, and that's the absolute antithesis of what a judge should be doing."
Kaufman went on to describe the Citizens United ruling as "really quite extraordinary," since the corporations in question have "massive amounts of money" and "could spend hundreds of millions of dollars if they decide it was in their interest to do so and completely overtake whatever individual expenditures we have in the country."
Kaufman also invited Kagan to discuss what she believes to be the Court's role in ensuring a level playing field between major corporations and individual Americans, as well as her reverence for former Chief Justice Thurgood Marshall's view that Constitutional interpretation demands the Court show a "special solicitude for the despised and disadvantaged."
"The greatness of the Court historically has been that, no matter who you are, your arguments are considered with the same kind of respect," said Kagan. "And if you're right on the law, it doesn't matter that your opponent has a great deal more wealth or more power than you do."
"[Justice Marshall] lived in a time and he lived in a world and he lawyered in a world in which many doors were closed to him," Kagan, a former clerk to Justice Marshall, continued. "I think the reason he revered the courts was that step by step over the years he did find success in the courts because the courts were willing to listen to those claims in a way that nobody else in the governmental system was."