I’ve received a copy of Elena Kagan’s prepared opening statement (which she will deliver this afternoon). It’s an elegant statement in which Kagan sounds the themes of impartiality and judicial restraint. (On first read, I didn’t find any reference to President Obama’s “empathy” standard.) What she actually means by her words and how those themes can be reconciled with her pattern of support for liberal judicial activism is another matter.
If I run across an online link to her opening statement, I’ll add it here. In the meantime, here are some excerpts:
What the rule of law does is nothing less than to secure for each of us what our Constitution calls “the blessings of liberty” – those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.…
The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law. It means that everyone who comes before that Court – regardless of wealth or power or station – receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.…
For these reasons, the Supreme Court is a wondrous institution. But my stints in the other branches of government remind me that it must also be a modest one – properly
deferential to the decisions of the American people and their elected representatives.
What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.