Robert P. George on the Nomination of Elena Kagan

Robert P. George, a pre-eminent Catholic writer and thinker, is the founder of the American Principles Project (APP). The APP is a a non-profit policy institute dedicated to preserving the principles upon which this great nation was founded. Mr. George is a leader in the field of ethics, constitutional law, and political philosophy. He is a Natural Law philosopher and lawyer. This is important, because it says something about how he views the law and the role of law in society. There is really no one better to speak on the nomination of Elena Kagan, than a person like Mr. George. He published his statement on Elena Kagan's Nomination to the Supreme Court over at APP, but I have it here for you. My emphasis:

In Elena Kagan, President Obama has nominated a person of great intellectual attainment, and unquestioned personal integrity. In these important respects, she is a nominee much in the mode of both nominees of the President's predecessor, George W. Bush, namely: John Roberts and Samuel Alito. There are some who argue that intellectual ability and personal probity are sufficient qualifications for someone to serve on the Supreme Court of the United States. President Obama disagrees with that position, and I believe he is right to reject it. In explaining his decisions to vote against the confirmation of Chief Justice Roberts and Justice Alito, then-Senator Obama explained that a suitable justice must have a sound view of the role of the courts in our Constitutional system. Again, I agree.

Where I believe President Obama errs is in his view of the proper role of the courts. In envisaging courts as agents of social change unconstrained by the text, logic, structure, and original understanding of the Constitution, he misunderstands the important but limited role of judges in our constitutional system. The judicial office is not a license for jurists to usurp the authority of legislators, or impose on the nation their preferred ideas about social justice or personal rights. When judges do that, in the name of a right to abortion, for example, or to redefine marriage or drive religion from public life, they betray the Constitution in whose name they purport to act.


So, Solicitor General Kagan's nomination to the Supreme Court provides an important opportunity for a national conversation on the proper role of the judiciary in our system of democratic republican government. Senators, in particular, should follow the President's lead and advice in questioning the nominee closely about her view of the role of judges, and oppose confirmation if they find that she espouses a view contrary to the one they believe to be proper under the Constitution. To this end, as Kagan herself noted in relation to previous Supreme Court nominees, it is imperative that she answer questions about particular issues, including abortion, marriage, and the role of religious faith in American public life. For her to decline to answer such questions would be not only to contradict herself but to undermine the valuable opportunity for a serious discussion of the role of courts that her nomination presents.


Because I know Solicitor General Kagan to be a person of integrity, I do not expect her to attempt to evade questions whose legitimacy she affirmed when the nominees of previous presidents were under consideration. Moreover, with an overwhelming Democratic majority in the United States Senate at the moment, her candor would be unlikely to place her confirmation in jeopardy.


As Dean of Harvard Law School, Kagan's openness toward the serious engagement of competing points of view led to discussions that enriched the intellectual life of the community she served. By making possible a serious discussion of the vital question of the role of courts in our constitutional system she is in a position to confer an equally-valuable gift on the nation.


This is no time for her to go silent.

Robert P. George is the Founder of the American Principles Project. He previously served as a Judicial Fellow at the Supreme Court of the United States, as well as on the United States Commission on Civil Rights, and was a member of the President's Council on Bioethics

Political sound-bites will rule the media debate on Ms. Kagan. It will be a left v. right debate, talking around the periphery of the important issues. I don't want to sound like some pseudo-intellectual, for I am NO INTELLECTUAL, but Mr. George is right in what he says about making sure that we focus on what is important in this confirmation proceeding.

This woman obviously is intellectually trained. We could argue over what "is" ...is all day long, and not get anywhere. The fact that she has no judicial experience, is important, but not vital to whether or not she is qualified. There is a reason why judicial experience is not a requirement for service. As a Justice, you have the brightest and best law clerks and staff you could ever get your hands on. People that become Senators, Congressmen, Presidents, other Supreme Court Justices, so you are not lacking in supporting staff. So what is important, and what will shape who she is as a Justice, is her view on the role of the courts. If you look at any of the current Justices, their jurisprudence is more closely tied to their view of the role of the Court, than their political leanings. For example, Stevens was appointed by Gerald Ford, Kennedy by Reagan.

Confirmations have always been an interesting political game. The Confirmation History

When you read a book such as Stephen Breyer's "Active Liberty" you get a very progressive and newly created political philosophy and a very strange jurisprudential view. This is especially true if you compare it to something such as "A Matter of Interpretation" by Antonin Scalia; Scalia takes a more traditional approach grounded in a philosophy outlined in the original documents of the founding of this country. So when comparing the two, you can gleam where their decision making comes from, more so I think than whom they voted for in the most recent election.

Rightfully so, I think that personal jurisprudence should be the focus of inquiry on newly appointed persons to the Supreme Court. This should be the investigatory target of the Senators in the confirmation hearings. No topic will more clearly reveal their qualifications as a Supreme Court Justice than a thorough examination of this area of their personal beliefs. There are plenty of smart people, smart judges, and highly educated persons that could be nominated for the Court, that could be argued for as a good fit by the media. In reality though, their political leanings or the person that nominates them shouldn't matter. Only their view on the role of judges and the courts should matter.

This isn't about policy or strategy like it is in politics. It is about proper function. Let us hope that we can gleam what function Ms. Kagan believes she would play as a Justice, and what role and function the Court should have within our government and country. If it rings untrue, then she should not be confirmed, but if it rings authentic and proper then she should be confirmed. Not to worry though, because things like Abortion, Marriage, and other topics close to the hearts of Catholics will be encapsulated in this inquiry. Properly a nominee will be asked about their personal beliefs on hot-topic issues and how those beliefs and ideas relate to their role as a Justice. In the end though, it should be about jurisprudence and not preference. The role of a Justice is not legislation or policy, but legal interpretation. If the role of a Justice is done properly, the will of the people and the laws of congress are hardened, they aren't made or even reconstructed.