Monday, July 12, 2010
Why Sen. Hatch says he will vote against Kagan.
I don't really agree with the claim that she is unqualified. She may not be as qualified as others one could name, but some of those others would be even worse choices. By any reasonable standard, she has a pretty dazzling resume. A better choice would be somebody with deep judicial experience, but not all Justices were judges or former judges when nominated.
I think what justifies a no vote is the reasonable inference that her judicial philosophy is inconsistent with the philosophy that a supporter of the Constitution should have. And that is inconsistent with support for the progressive project, which conflicts in important respects with our Constitution.
I also think conservatives and libertarians should stop talking in terms of judicial activism. That's really an outmoded and inaccurate way to characterize the issues at stake. The problem with progressive jurisprudence (a better name is needed there too) is not just that they invent rights or intervene when they shouldn't, but that they do not enforce rights and intervene when they should. The whole judges should be passive and respect democracy credo flows out of the conservatism of the 1950s to 1970s or so, and we have moved way beyond that. Reestablishing anything like the federalism the framers had in mind would take a lot of activist judging, and probably a constitutional amendment, for example.