The Senate confirmation hearings for Supreme Court nominee Elena Kagan are underway. The appointment of the former Dean of Harvard Law School may not be quite the foregone conclusion assumed a couple of months ago. Some Republican Senators seem to be winding themselves up for a filibuster.
Without fireworks the hearings are not attracting much attention, but they are prompting a vigorous revival of argument about "judicial activism". Ann Coulter puts the view from the right pithily:
"Congress, as the people's elected representatives, is supposed to "get things done." If they don't, that usually means the people don't want those things done. It's not the court's job to say: "Hey, Congress, you forgot to enact this! Don't worry, we'll take care of it." But liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can't pass themselves because they'd be voted out of office if they did."
Kagan's 5 years in Clinton's team, and hostility to military recruitment at Harvard are under the spotlight, along with concerns about her lack of law practice and judicial experience. The unseemly debate over whether she is lesbian is unlikely to revive in the Senate Committee but conscientious senators are worried about her position on judicial activism. Her support is substantially based on success as Dean of Harvard Law School. She has never been a judge and apparently has not written much of rigor.
She's struggling to point to anything showing much respect for the duty to maintain certainty and predictability in law. Former Attorney General Edwin Meese summed it up for conservatives long before the hearings as follows:
"Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the "despised and disadvantaged." The problem with this view—which sounds remarkably similar to President Obama's frequent appeals to judges ruling on grounds other than law–is that it allows judges to favor whichever particular client they view as "despised and disadvantaged."
Our recent experience of a Law School Dean in high constutional legal office is not encouraging. In my view former Waikato Dean Margaret Wilson could hardly have a worse legacy as Attorney General and Associate Minister of Justice.
We got a relationships property law that penalises separated mothers with children and lonely old people and compulsorily attaches the property consequences of marriage to many others who have precisely the opposite intention by not marrying.
We lost access to the Privy Council, one of the world's most highly regarded judiciaries. I guess it would have cost New Zealand no more than $5m per year (all costs including lawyer travel) for the dozen or so cases a year that went to the Privy Council.
The standard view is that three hearing levels are needed to achieve reasonable appeal reliability. A well functioning judiciary is reversed in about one third of appeals at each level. 12 cases per year was a high normal frequency of appeal to the third level from our size population (comparing ourselves with Austraila, the UK, Canada).
We now have around three times that number going to the third level. The court was "designed" to hear up to 50 full cases per year.
The cost could be readily calculated accurately, but guesstimates will be close enough to highlight the point – we are now paying between five and ten times the previous cost with no noticeable increase in the certainty or predictability of our law, or any public increase in confidence in the judiciary.
The interest, maintenance and depreciation costs for our Supreme Court's ugly home alone may be more than $10m. There will be salary and operating costs of say another $4m. And assuming conservatively that it costs each side an average of $150k to take a case to the Supreme Court the increase in the number of cases going past the Court of Appeal takes the private cost to say $12m. The total of $26m can be compared with the guesstimate of $5m as the total cost of Privy Council access used during the debate over abolition of our right to go there.
But the worst result of our new arrangements is the inability reassure people that decisions are not overly influenced by chumminess between judges and counsel and litigants. That problem was at the heart of my efforts to force a rethink while Wilson's Bill was going through.
My worst fears have been justified. Just this week I was sent by an intelligent businessman his argument to the court for a rehearing in circumstances that to him reeked of the influence of personal friendships or undue respect between Supreme Court judges and counsel. Though I doubt that he is right, I can not be sure, and there is nothing I can say that will reassure him that his case has been considered dispassionately.
And we have yet to experience our first controversial appointment, after which there will be permanent suspicion of political agendas on the Court.