The Kagan Confirmation Hearings, Tea Partiers, Bishop Usher and the Right to Bear Arms

The consensus is that Kagan will pass through the confirmation hearings easily and become the next Supreme Court Justice. The consensus is also that she is being very careful to reveal as little as possible of her opinions in the hearings, playing her cards very close to the chest.

Kagan Follows Precedent by Offering Few Opinions: WASHINGTON — Elena Kagan deflected questions about her own views on gun rights and abortion during her Supreme Court confirmation hearings on Tuesday, instead describing Supreme Court precedents. She declined to say whether terrorism suspects must be warned of the right to remain silent, saying the issue was “quite likely to get to the courts.” (via

It also seems to be part of the consensus, though less widely or overtly stated, that her caution, her deflection of questions and avoidance of clearly stated opinions, is a strategy to avoid giving Republicans and Tea Partiers any ammunition, anything with which to generate controversy.

Initially, I was fine with this. Kagan looked like a good liberal Jewish lesbian, likely to hew as close to my values as I could reasonably expect from anyone selected for the job.

But in the wake of the Supreme Court’s gun control decision on Monday — Justices Extend Firearm Rights in 5-to-4 Ruling — a decision which caught me and I suspect a lot of other people by surprise, I find myself much more interested in knowing where Kagan stands on a whole range of issues.

The fact that there is this political strategy of being cagey, of Kagan not really saying what she believes or where she stands — a strategy presumably orchestrated in part out of the White House and the offices of the Democratic Party — to me seems to call into question the whole process. Isn’t the point of these confirmation hearings that the nominee’s views and values, and the likely character of their work in the position, is brought out, discussed and considered by Congress and by the nation?  Kagan’s caginess may be smart politics and good for Obama and the Democrats, but is it good for us, good for the process, good for the country?

If, as seems the case, the whole confirmation hearing process — particularly for Supreme Court justices — has become so sclerotic, so corrupted by petty posturing and party politics, and by those hot-button issues that have been damaging to American politics more generally (eg, abortion, gay marriage, etc.), that there’s no way to get through it reasonably without subverting its intent, without adopting a policy of caginess and avoidance — in other words, without essentially trashing the whole point of the process — then we really need to face up to that, and maybe the time is now.

Justice Confirmation Hearing in a Tea Party Era: The center of the Tea Party argument is that Congress has usurped powers it was never granted in Article I, Section 8 of the Constitution, which contains what is commonly referred to as the commerce clause. The section mentions roughly 20, including the power to collect taxes, to pay debts, to “provide for the common defense and welfare of the United States,” and to regulate commerce “with foreign nations, and among the several States, and with the Indian Tribes.”  (via

The Tea Partiers have put issues of Constitutional law and interpretation very much in play — a bit theatrically, perhaps, as they run around in colonial drag waving reproductions of the original text in the air. But they are serious, it seems, in thinking that Congress has vastly overstepped its role, beginning with the New Deal legislation, and they want to roll it all back, and stick to a stricter interpretation of the text of the Constitution.

I find the Tea Partiers’s stance in the above quote and elsewhere worrying — and, frankly, stupid — and I also suspect them of disingenuousness. They seem to me a bit like Usherites, insisting on a literal interpretation of a document written in a very different time and place, really in a fundamentally different world.  The Tea Partiers’ position seems to me at times roughly on par with that of Bishop Usher insisting, based on his close and misguided parsing of Biblical texts, that the world was created in 4004 BC — specifically the nightfall preceding 23 October [here].

It also seems in part like they are trying to undo, or that their argument could be read as challenging, the settling of the “State of the Union” that was achieved, at terrible cost, with the American Civil War. When the Tea Partiers insist that Congress has usurped powers that are not specifically granted to it by the Constitution and which therefore belong to the states, I hear the gunfire of Confederacy versus Union echoing in the distance — in the past but perhaps, at least figuratively, in the future as well.

I don’t have any background in Constitutional law nor much even in the broad sweep of American politics beyond what anyone doing courses as an undergraduate at a top 10 university would have, and it is possible I am being a bit alarmist.

However, it is certainly true that the Founding Fathers and the framers of the Constitution could have had no way of properly foreseeing or understanding the world in which we find ourselves.  For instance, the Constitution grants to the Federal Government the power to oversee national defense — but when the Joint Chiefs of Staff believe that climate change is one of the greatest threats to national security that the country faces, what powers then does the Federal Government have or should it have, for fulfilling this Constitutional mandate?

It’s also true that “politics is the art of the possible” and that the process by which the Constitution was written was very much a political process, and that the resulting document is simply an encoding of that process, of the state of what was possible at that time and place — and includes such acts of acquiescence to the possible as the notorious “three-fifths compromise “:

Representatives and direct taxes shall be appointed among the several States which may be included within this Union, according to the respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. (via We, the people of the United States, in order to form a more perfect union )

If politics is indeed “the art of the possible” — which too often ends up meaning “the lesser of two evils” — societies are living things, and what was true for American society 200 hundred years ago, even allowing for the distortions of compromise, simply cannot be assumed to be true — in fact, cannot be true — for any society that has been not been held in suspended animation since then. Dictatorships often try to enforce a kind of stasis on societies, to stop them living and breathing. But despite localized and/or temporary dictatorial attempts at stopping change, the United States has grown and changed tremendously since the Constitution was written.

That’s the stupid — that Tea Partiers seem incapable of accepting that societies change and that what may have worked 200 years ago (at least for white, male slave-owners in a small, homogeneous, agrarian society of 2.5 million people) or even 50 years ago is really unlikely to be adequate today — for a markedly heterogeneous population of 310 million (in a world of 6.9 billion and growing fast, as opposed to the 800 million back then) in the 21st Century, in a time marked by climate change, terrorism, the vast and strange potentialities of our communications revolution, globalization, corporate capitalism, cloning, genetically modified organisms, asteroid vapor being collected by the Japanese, nanotechnology, Twilight mania, and water shortages.

The disingenuous part is that I think these Tea Partiers — or at least many of them — are less concerned with a strict approach to Constitutional issues as with the way in which pushing that approach allows them to attack many of the more recent changes in American society — changes which they hate. Like desegregation, for instance.

They want to turn back the clock, back to a time when they were on top.  That’s not going to happen.  Much of their sense of frustration, much of the change they hate, is tied up with larger forces — like the extraordinary bubble of prosperity in which we floated for so many years after WWII, and which now seems to have popped, for good; like a world with two super-powers and clear lines of good and evil (the “super-power” part should have alerted us to the fact that this was an adolescent fantasy, a comic book way of seeing the world, even then). A world where you sprayed DDT on everything and DES was just a wonder drug, not “the wonder drug you should wonder about.” Stomping on gay marriage and trying to roll back desegregation and social welfare programs is not going to put America back on top — it’s just going to push us faster towards the bottom, morally, politically and economically. And there is no putting those other genies back in the bottle.

Gil Scott-Heron had their number way back in 1981 in “B Movie”:

Civil rights, women’s rights, gay rights — it’s all wrong. Call in the cavalry to disrupt this perception of freedom gone wild. Goddamn it — first one wants freedom, then the whole damn world wants freedom. Nostalgia, that’s what we want — the good ole days when we gave ’em hell. When the buck stopped somewhere and you could still buy something with it. To a time when movies were in black and white and so was everything else. [listen]

But if I distrust the motives of the Tea Partiers in their calls for a particular, strict Usherite-like approach to the Constitution, I at least share with them and members of the Congressional committee a desire to know where Kagan stands on various issues of Constitutional law — particularly after that shocking gun decision. And I think something is obviously deeply wrong when we stop having hearings where you hear anything, or at least anything of interest, when the news is that we still don’t know what the nominee thinks about some of the most pressing issues confronting the country, and the future.

If the process — of confirmation hearings, maybe of Washington politics generally — is so damaged and dysfunctional that this is the only way to play it, then let’s get that out in the open. Let’s have Kagan answer honestly and at length — about her sexuality and her Constitutional views — and let the chips fall where they may. Let’s let it go to hell. Let it get ugly and sordid, brutal, bruising and embarrassing. Let’s look stupid and petty and deranged in the court of world opinion. Because then maybe there will be some pressure to change.

Just because we think this nominee is one of ours, we shouldn’t collude in this fucked up process. And after that gun decision, don’t you really, really want to know Kagan’s position on some  Constitutional “right to bear arms”?


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