- The Washington Times - Sunday, May 23, 2010

Elena Kagan, a Supreme Court nominee without judicial experience, has suggested in writings and speeches over a quarter-century that when judges make decisions, they must take account of their values and experience and consider politics and policy, rather than act as robotic umpires.

Her words stand in contrast to the more technical view of judging voiced by Chief Justice John G. Roberts Jr. at his confirmation hearing five years ago. Chief Justice Roberts said he considered himself an umpire merely calling balls and strikes.

Miss Kagan apparently has never directly addressed Chief Justice Roberts’ comments.

Republicans have held his description of the job as a model of judicial restraint and used it to criticize President Obama for what they call his support of judicial activist judges imposing their own views on the law.

But Miss Kagan put forward a different idea of judging in a 1995 law review article.

“It should be no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value,” Miss Kagan said in a review of Yale law professor Stephen Carter’s book “The Confirmation Mess.”

Miss Kagan quoted Mr. Carter approvingly to say that to decide the hard cases that rise to the level of Supreme Court review, justices must use their judgment. When they do that, Miss Kagan said, again citing Mr. Carter, their “own experience and values become the most important data.”

It may be hard to divine just what Miss Kagan meant, but it’s “not calling balls and strikes,” said Georgetown University law professor Pamela Harris.

Last year, Republicans chided Mr. Obama for saying his first Supreme Court nominee, Sonia Sotomayor, would bring empathy the ability to see things from another’s point of view to the bench. A leading Obama critic, Sen. Jeff Sessions, Alabama Republican, has said the empathy standard is “this feeling standard. Whatever that is, it is not law. It is not a legal standard.”

Mr. Obama stopped using the “e-word,” but recently Justice Anthony M. Kennedy offered a defense of empathy in words similar to Miss Kagan’s. He suggested there was nothing controversial about it.

“You certainly can’t formulate principles without being aware of where those principles will take you, what their consequences will be,” Justice Kennedy said at a speech in Florida on May 14. “Law is a human exercise and if it ceases to be that, it does not deserve the name law.”

Not since 1972 has a president chosen someone for the high court who hasn’t been a judge. So what the 50-year-old Miss Kagan has said about judging might be the best indicator of the kind of justice she would be.

Republicans have said that because Miss Kagan hasn’t left a trail of judicial opinions, they will pore over her records as a Clinton White House aide and academic for any clues. Her speeches and papers from her time as dean of the Harvard Law School and, before that as a law professor and graduate student, are certain to get close attention at her confirmation hearing in late June.

Miss Kagan had been recently made the Harvard law dean when she spoke to a group of Princeton alumni in 2003 about judicial review, the courts’ power to review the actions of the other branches of government.

In handwritten notes that were among the thousands of pages of documents Miss Kagan provided the Senate Judiciary Committee, she said judicial review “should be exercised w/ caution” because it involves overturning the actions of popularly elected officials.

Interpreting the Constitution is not mechanical, she said. If it were, it “wouldn’t be issue,” Miss Kagan wrote in abbreviated notes.

Interpretation, Miss Kagan said, “necessarily + inevitably” involves “political + policy questions.”

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