Sunday, August 8, 2010

Dworkin on Kagan

Ronald Dworkin's article, "The Temptation of Elena Kagan," is still worth a read now that Kagan has been sworn in as the newest Supreme Court Justice. 


[image: Constitutional Oath, August 7, 2010, via]

Reflecting on the criticisms of the confirmation process, Dworkin agrees that the process seemed "pointless," but also notes that there is an important argument supporting a nonsubstantive - - - or at least non-detailed - - - confirmation process:

It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights. It seems doubtful, for instance, that anyone who declared a concern to protect due process rights of suspected terrorists, or to better protect the rights of women to choose abortion, or to recognize a constitutional right to gay marriage could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.

Dworkin's conclusion, however, seems a bit problematical.  He argues for a "structural change in the Judiciary Committee’s procedures" that would "appoint special majority and minority counsel, who might be academic specialists in constitutional law, to conduct a major part of the hearings, as other congressional committees do in other investigations."    This may have some limitations given that the US Supreme Court is not a "Constitutional Court" limited to constitutional issues as in some other constitutional democracies, but also has important powers regarding the interpretation of federal statutes, regulations, and policies.  However, Dworkin supports his suggestion with his view of the place of constitutional discourse in our democracy:

But confirmation hearings remain the best and perhaps only opportunity to make constitutional law a matter of public interest and concern. That is a grand goal—it would improve our democracy in many ways—and we should miss no opportunity to pursue it.

Is it true that constitutional law is lacking as a "matter of public interest and concern" these days?


Appointment and Removal Powers, Current Affairs, Theory | Permalink

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