Supreme Court Nominations

Today’s Metaphors: Kagan Advises Democrats About Being an Actor and an Umpire

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In questioning from Democratic senators this morning, Elena Kagan suggested that despite her policy experience in the Clinton White House, taking a seat on the U.S. Supreme Court would require her to be “an independent actor.”

Sen. Ted Kaufman, D-Del., asked her about how serving on the White House Domestic Policy Council, which Kagan did under President Bill Clinton from 1997 to 1999, would differ from serving on the Supreme Court.

“There’s a huge difference,” Kagan said. She noted that she proudly worked on education, tobacco regulation, crime prevention, and other issues as Clinton’s No. 2 domestic-policy aide during those years, “and I contributed to doing some good things across the country.”

But service as a judge “is an entirely different role,” Kagan said. “You’re an independent actor. Your only master is the rule of law.”

She cited the example of Justice Robert H. Jackson, who was the U.S. solicitor general and attorney general before serving on the Supreme Court from 1941 to 1954.

“Robert Jackson was such an executive branch man,” Kagan said. “He was solicitor general, he was attorney general. He was also very close personally to Franklin Roosevelt. They were real friends. Justice Jackson got to the court, the executive branch never counted on his vote. He was as independent as they come.”

She mentioned Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, the 1952 case that rejected President Harry Truman’s efforts to seize the nation’s steel mills.

“I’m sure President Truman thought, ‘Oh, sure, Robert Jackson will vote with me,’ and Justice Jackson did nothing of the sort,” Kagan said. “That is the kind of independence I think a judge has to show.”

Earlier this morning, Kagan was asked by Sen. Amy Klobuchar, D-Minn., about Chief Justice John G. Roberts Jr.’s oft-debated comparison, as a nominee before the Judiciary Committee in 2005, of judges to umpires just calling balls and strikes.

Kagan said Roberts’s metaphor has some truth to it, “but like all metaphors, it has its limits.”

It was apt in that judges, like umpires, “should not have a team in the game,” Kagan said.

“Second, and I think this is what the chief justice most had in mind, is that judges should remember they are not the most important people in our democracy,” she said. “They have an important role. But judges should recognize that that is a limited role. Fundamental decisions in this country are made by the people and their elected representatives.”

Where the umpire analogy has its limits, Kagan said, is “that it might suggest to some people that law is a kind of a robotic exercise. That we stand there and go ‘ball’ and ‘strike.’ That there‘s no judgment. But judges do in many of these cases have to exercise judgment. They’re not easy calls.”

“Law does require a kind of judgment, a kind of wisdom,” Kagan said.

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