TUBBS: Put nominee on the Stevens hot seat

Ask her what she respects about a notorious judicial activist

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Even the most hopeful conservatives should not expect Senate Republicans to derail President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court. Ms. Kagan’s credentials are impressive, she has a modest “paper trail,” and the Democrats still have a sizable majority in the Senate. But the Republicans can achieve important goals during the confirmation hearings, which began Monday. Obviously, they should use the hearings to learn more about Ms. Kagan’s judicial philosophy, but they also can prepare themselves - and the American people - for the more contentious battles that may lie ahead with the next vacancy on the high court.

One way to do this is to focus on the judicial record and philosophy of Justice John Paul Stevens, the man whom Ms. Kagan was chosen to succeed. After being nominated, Ms. Kagan effusively praised Justice Stevens, remarking that the nation was “fortunate beyond all measure” to have had him on the court for 35 years. Such praise may have been prompted largely by considerations of decorum, but Republican senators should ask Ms. Kagan whether she truly holds Justice Stevens in such high regard. If her judicial views align with his, especially on matters of constitutional law, they should press her on a more fundamental issue - namely, whether those views can be reconciled with our nation’s commitment to representative democracy.

For conservatives, Justice Stevens‘ career on the Supreme Court is a lamentably familiar tale. Nominated by President Ford in 1975, Justice Stevens became increasingly liberal in his reading of the Constitution as the years passed. He thus set something of a precedent for other justices nominated by Republican presidents, including Sandra Day O’Connor, Anthony Kennedy and David H. Souter, all of whom veered leftward after joining the court.

Justice Stevens‘ liberal reading of the Constitution is evident in many places. Consider his interpretation of the Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments.”

In Ewing v. California (2003), the court upheld a California law requiring mandatory sentences for persons convicted of three felonies. In the 1990s, roughly half the states passed such legislation, commonly known as “three-strikes-and-you’re-out” laws. The majority in Ewing correctly maintained that nothing in the Eighth Amendment forbids California from promoting the public safety by adopting such laws. In other words, neither the text nor logic nor original understanding of that amendment precludes any state from acting as California did.

Justice Stevens, however, dissented and expressed no qualms about second-guessing the policy of the California Legislature. In his reading, the Eighth Amendment “directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment.” To Justice Stevens, any intelligent person could see the need for such judicial oversight. Failure to affirm that need might require one to accept, for example, life imprisonment “for overtime parking.”

Even if many liberals think Justice Stevens offered a compelling argument here, reflective persons can see its flaws. Justice Stevens invoked a morally intolerable scenario to justify broad judicial power, a widely used tactic in the liberal repertoire. In this account, humane and morally enlightened judges must offer different kinds of beneficent protection to the American people.

In fact, our constitutional system already provides such protection. It comes in the form of regular elections and a representative’s accountability to his constituents. Thus, being mindful of human tendencies and the relative harmlessness of the offense, no sensible legislator would ever propose life imprisonment for overtime parking, and any representative foolish enough to embrace such a policy would answer for it at the next election.

The issues in Ewing v. California are momentous. The case illuminates basic differences between liberal and conservative views on judging and interpreting the Constitution. Unsurprisingly, three other liberals on the court signed Justice Stevens‘ dissent.

In view of current political realities, some conservatives might say the worst that would happen would be that one liberal on the court would be replaced by another liberal. But the prospect of another Justice Stevens on the court is disturbing, and if Ms. Kagan was sincere in her praise of him, Republicans in the Senate would do well to find out why. In doing so, they should aim to educate the public about Justice Stevens‘ record as a Supreme Court justice and his fondness for legislating from the bench. The American people deserve a probing discussion - and critique - of such an expansive understanding of judicial power.

David L. Tubbs teaches politics at King’s College in New York City. He is the author of “Freedom’s Orphans: Contemporary Liberalism and the Fate of American Children” (Princeton University Press, 2007).

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