In Print: Volume 88: Number 2
Elena Kagan Can’t Say That: The Sorry State of Public Discourse Regarding Constitutional Interpretation
By Neil J. Kinkopf
88 Wash. U. L. Rev. 543 (2011)
I have reviewed the draft statement that Elena Kagan has proposed submitting to the Senate Judiciary Committee. In this statement, Dean Kagan seeks to educate the Judiciary Committee and the American people to think differently about the enterprise of constitutional interpretation. This is a highly quixotic mission with very little chance of success and tremendous potential to do damage to you and to the judiciary. It is, therefore, my recommendation that you urge Elena Kagan, in the strongest terms possible, not to submit the proposed statement. If this effort at persuasion fails, I recommend that you withdraw her nomination.
Dean Kagan proposes to declare that “the ‘law’ often runs out in difficult constitutional cases. At that point, a Justice has no choice but to bring her personal values, experiences, and judgments to the process. The law, alone, is simply not enough to decide these cases.” I want to make it clear at the outset that I do not, in this memo, take issue with the substance of this view. My objections are, rather, strategic. In short, Dean Kagan’s confirmation hearing is neither the time nor the place to challenge the prevailing notion of how judges should interpret the Constitution.