Tell the Senate to restrain executive power
Copies of this letter were distributed to members of the Senate Judiciary Committee on June 28 , 2010. The letter is still open for signatures and copies with updated signature lists may be distributed later in the year.
Your constitutional responsibility to ratify and consent to the president’s judicial nominees is perhaps among the most significant of the many powers that you hold as a senator. The nomination of any potential justice to the Supreme Court is momentous, but at this particular time in history, Elena Kagan’s nomination to replace Justice John Paul Stevens is pivotal to the future of our republic.
We urge you, given your oath to uphold the Constitution, to carefully consider the nominee’s views of executive power and individual rights as you decide how to vote on the nomination.
Elena Kagan is unquestionably brilliant, and could bring a great many formidable skills to the bench. The question before the Congress, however, is whether her track record indicates the political independence for which her predecessor grew notorious. Justice Stevens repeatedly checked the excesses of administrations of both parties. In contrast, Solicitor General Kagan’s record in public service, as well as her scholarship, indicates a potential deference to executive authorities that could be poorly suited to this era of expanding executive power.
Whether the nominee’s views as a justice would reflect the positions she has taken as a solicitor general is admittedly unclear. Indeed, the roles of senior Justice Department officials and Supreme Court justices hold little in common.
However, the few available indications of the nominee’s views indicate a predilection to favor the Executive Branch, perhaps recalling her own history of public service within it. Many trends on the Supreme Court have attracted attention, such as demographic trends reflected in the emergence of a Catholic majority, educational trends rendering the Court a product entirely of the most elite law schools and legal pedigrees, political trends favoring corporations, and jurisprudential trends undermining constitutional rights. Given the dramatic expansion of executive power over the past decade, the rising predominance of former executive branch officials on the Court should raise at least equal concerns.
Unfortunately, a variety of issues constrain Congress’ ability to check the President, whose institutional authority has ballooned over the past decade—often with Congress’ active support, apparent in recent amendments to statutes including the Military Commissions Act and the Foreign Intelligence Surveillance Act. As the “war on terror” continues to fan the flames of public fear and encourage deference to authority, the need for judicial independence stands at a historical zenith.
Regardless of who stands before your committee, we encourage you to vigorously examine any nominee to the Supreme Court, with a particular eye towards establishing his or her willingness to check and balance the Executive Branch when necessary to protect constitutional rights.
Areas of constitutional doctrine that have particularly suffered in the past decade include the First Amendment rights to freedom of association and speech, as well as religious free exercise; the Fourth Amendment rights to freedom from unreasonable searches and seizures; the Fifth Amendment right to due process; the Sixth Amendment’s assurance of trial by an impartial judge before a jury of one’s peers; and the Fourteenth Amendment’s commitment to equal protection under the law. Any nominee’s views of each of these doctrines should be carefully considered before granting a lifetime seat on the nation’s highest court.
You, as a senator of the United States, are among a small number of guardians of judicial independence—and the separation of powers on which our republic has proudly stood for more than two centuries. We urge you to consider that trust, in this time of constitutional tumult, as a primary principle when deciding whether to confirm any nomination to the Supreme Court.