As we move into Elena Kagan Week in Washington, we’d do well to remind ourselves of Paddy Chayefsky’s prescient 1976 revelation-in-the-boardroom delivered by a fictional network executive to the deranged news anchor Howard (“I’m as mad as hell”) Beale.
The “hot button” issues likely to be raised in this week's hearings – abortion, diversity on the court and in the workplace, and gays in the military - will serve as their dramatic fodder —white papers on which can be found on the SCOTUS blog at the links. Every nation needs its circuses and a Supreme Court nomination hearing is one of our favorite political carnival attractions (remember Justice Thomas’ coke can?)
“On the Docket” readers will not, however, be taking in the side shows. They'll rightly want an answer to the question what would Elena Kagan’s elevation to the nation’s highest court mean to American business? And that just happens to be the most important question to address with Obama’s Solicitor General as America careens its way ever deeper into the twenty-first century.
As New York Times reporter and blogger Sheryl Gay Stolberg recently noted in her article Kagan Hearings May Have Wider Focus, the overarching issues of this year's nomination season are “the expanding power of the federal government,” and the constitutional rights of corporate entities. Both of these issues have a “good for the goose, good for the gander” aspect that should caution both parties to choose Supreme Court nominees from the middle rather than the loose fringes of American political life.
That both Republicans and Democrats are now federal power expansionists is inarguable. To the howling cries of Democrats, the Bush Administration greatly enhanced federal administrative and legislative powers during its two terms in office. Unsurprisingly, Democrats - the original "Big Government" party — continue to view nearly every area of American life as appropriate for regulation and spending.
The evidence for federal power expansion by Republican administrations is extensive and includes a 2006 non-partisan Congressional Research Service Report taking the Bush administration to task for implementing a “comprehensive strategy to strengthen and expand executive power" by issuing “signing statements” exempting it from compliance with the very measures it signed into law. That same year, the conservative Cato Institute wrung its hands over the Bush administration’s expansion of federal powers in the areas of political speech, detention of suspected terrorists, and federal spending on matters historically regulated by the states. Current critics of the Obama administration express outrage at its purportedly unconstitutional regulation of health care, financial markets, the environment and business itself.
Kagan, if confirmed at the age of 50, has a likely tenure of at least a quarter of a century. She will therefore be making decisions during the reign of Democrats and Republicans alike. As Tea Partiers complain, the Republican Party is no longer the last line of defense in the federal vs. state rights debate. That debate has moved from the center of party politics to its fringe, at least for now.
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Once one party or the other is given the opportunity to make its policies concrete through federal legislation, regulation and executive fiat, both find the chance to do so irresistible. It would therefore seem wise for both parties to support for elevation to the nation’s highest court people who are realists and team players; people who value consensus over ideology; people who attempt to accommodate business interests while at the same time having due regard for "the little guy" — in short, people like Elena Kagan.
That Kagan should prove a perfectly acceptable choice for anyone whose business is commerce is demonstrated by what little we know about her. There is certainly nothing in the Kagan record to indicate an anti-business bias. As so many commentators have noted, she has generally shown herself to be a pragmatist who is inclined to pursue a mutually satisfactory non-regulatory relationship between business and the government. Whether this attitude would translate into the continued development of corporate “civil rights” as most recently expressed in the Citizens United decision, is almost impossible to say. That case, holding that the First Amendment protects corporate political spending, caused a fire storm of protest in Democratic circles. Harvard’s Laurence Tribe, for instance, attacked the opinion for
"treating corporations as 'associations of individuals,' granting those corporations full free speech rights, equating money and speech, and relegating to analytic irrelevance any concerns about the real-world effect of unmatched corporate wealth."
Whether Citizens United presages the “Blade Runner” judicial future envisioned by Tribe's colleague, Harvard Law School Professor Lawrence Lessig — one in which Supreme Court Justices bestow rights on other non-human entities like computers — will depend upon the moderating, precedent-abiding, pragmatic middle of a sober Supreme Court. What neither flesh and blood people nor the business community should ask for is a future that looks like Chayefsky's satiric vision of America.