WHAT DOES KYL HAVE AGAINST ‘ORDINARY CITIZENS’ AND ‘UNDERDOGS’?…. The Senate confirmation hearings for Elena Kagan’s Supreme Court nomination got underway this morning, and today has so far proven to be
mind-numbingly dull a little slow. What we’ve seen are opening statements from Judiciary Committee members — all of whom seem to have already made up their minds — and nothing else.
But there are some gems to be gleaned from some of the mini-speeches senators have delivered. Greg Sargent, for example, highlighted some fascinating comments from Senate Minority Whip Jon Kyl (R.), in which the right-wing Arizonan took on the very concept of judges looking out for the defenseless.
“Judge Sotomayor explicitly rejected the ’empathy’ standard espoused by President Obama — a standard where ‘legal process alone’ is deemed insufficient to decide the so-called ‘hard cases’; a standard where the ‘critical ingredient is supplied by what is in the judge’s heart.’
“Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have ‘a keen understanding of how the law affects the daily lives of the American people … and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.’ […]
“Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog.”
I suppose I’m not the target audience here, but this reads like praise to me. President Obama thinks jurists should have “a keen understanding of how the law affects the daily lives of the American people”? That sounds like a principle with real value. “Powerful interests must not be allowed to drown out the voices of ordinary citizens”? Sign me up. Looking at the courts as champions of those “unprotected by every other organ of government”? Preach it, brother. Thurgood Marshall had an “unshakable determination to protect the underdog”? No wonder he’s a national hero.
Except, of course, Kyl meant all of this as a condemnation. What I perceive as compliments were intended as derision. Kyl was repackaging progressive principles and commitments to protect the defenseless as concepts to be ignored and rejected. Indeed, the subtext wasn’t subtle — to embrace these ideas makes one unsuitable for the bench, at least as far Kyl is concerned.
Maybe my perceptions of public attitudes are off, but I don’t imagine most Americans would recoil at the notion of a federal judge looking out for the voices of ordinary citizens, before they’re drowned out by powerful interests. Nor do I think the American mainstream’s sensibilities are offended by Thurgood Marshall’s interest in protecting the underdog.