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Supreme Court Nominee Elena Kagan

As the Confirmation Hearings for Elena Kagan come to a close, it is time for Congress to reflect and digest the information presented to them.

With the Senate Judiciary Committee hearings concluded, it's time now for members of the Senate to carefully consider Elena Kagan's testimony and her views on issues raised during the confirmation hearings.

Congress will reconvene July 17, 2010 for the vote.

Although the American Center for Law and Justice has neither endorsed nor opposed Ms. Kagan, they did issue the following statement:

There are many important questions to consider - perhaps none more important than: does she consider the Constitution the final authority or will she legislate from the bench? With no judicial experience, the Senate must carefully consider her legal positions of the past and her judicial philosophy - how does she view the role of Justices, the Constitution, and the rule of law?

Before voting on Kagan's nomination to a lifetime appointment on the nation's highest court, it's time for the Senate to carefully consider her testimony and views expressed during the hearings. The American people deserve nothing less."

I do not have confidence that if she were confirmed to a lifetime position on the Supreme Court she would suddenly constrain the ardent political advocacy that has marked much of her adult life

The President of the United States is charged in the Constitution with Nominating a person to be a Justice of the Supreme Court. That name is forwarded to the United States Senate which Advises and Consents to that nomination or does not. If Consent is given, the person is sworn in immediately to be a Justice.

In her testimony this week, Ms. Kagan acknowledged that it is ‘difficult to take off the advocate’s hat and put on the judge’s hat.’ That difficulty is particularly acute for someone like Ms. Kagan, who has spent so much of her adult life practicing the art of political advocacy rather than practicing law.

“Unfortunately, Ms. Kagan failed to explain how she could overcome that difficulty, falling well short, in fact, of meeting her own standard for providing the Senate helpful testimony," states Senator Mitch McConnell, Senate Minority Leader. "She was far from forthcoming in discussing her own views on basic principles of American constitutional law.

"For example, she refused to repudiate her alarming position in the Supreme Court that the federal government can ban core political speech if it dislikes the speaker, including speech with a long and venerable history in our country, like political pamphlets.

“I do not have confidence that if she were confirmed to a lifetime position on the Supreme Court she would suddenly constrain the ardent political advocacy that has marked much of her adult life," says Senator McConnell. "The American people expect a justice who will impartially apply the law, not one who will be a rubberstamp for the Obama administration or any other administration. For these reasons, I will oppose Ms. Kagan’s confirmation.”

"We must be convinced that someone who has spent the better part of her career as a political advisor, policy advocate, and academic rather than as a legal practitioner or a judge can put aside her personal and political beliefs, and impartially apply the law, rather than be a rubberstamp for the Obama or any other Administration." says Dr. Rand Paul, Candidate for the United States Senate. "The Clinton library documents make it harder, not easier, to believe that Ms. Kagan could make that necessary transition."

Senator Jim Bunning could not be reached for comment.

The Clinton library documents make it harder, not easier, to believe that Ms. Kagan could make that necessary transition

The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" (majority vote) of the Senate.

Once appointed, Justices effectively have life tenure, serving "during good Behaviour", which terminates only upon death, resignation, retirement, or conviction on impeachment. The Court meets in Washington, D.C. in the United States Supreme Court Building.

The Supreme Court is primarily an appellate court, but it has original jurisdiction over a small range of cases. The Supreme Court is sometimes informally referred to as the High Court, or by the acronym SCOTUS.

The United States Constitution does not specify the size of the Supreme Court, but Article III authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices. As the country grew geographically, Congress increased the number of justices to correspond with the growing number of judicial circuits: the court was expanded to seven members in 1807, nine in 1837 and ten in 1863.

President Franklin D. Roosevelt attempted to expand the Court in 1937, seeking to appoint an additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement; under Roosevelt's proposal, such appointments would continue until the Court reached a maximum size of 15 justices.

Ostensibly, the proposal was made to ease the burdens of the docket on the elderly judges, but the President's actual purpose was to pack the Court with justices who would support New Deal policies and legislation.  This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt.  The balance of the Court shifted with the retirement of Willis Van Devanter and the confirmation of Hugo Black in August 1937. By the end of 1941, Roosevelt had appointed seven Supreme Court justices and elevated Harlan Fiske Stone to Chief Justice.

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