Supreme Court Justice Elena Kagan lamented the partisan bickering over high court vacancies, saying the confirmation battles make it appear as if Supreme Court justices are “sort of junior varsity politicians.”
“That’s an unfortunate thing because it makes the world think we are sort of junior varsity politicians,” Kagan told a group of University of Chicago students at the Supreme Court on Wednesday. “I think that’s not the way we think of ourselves, even given the fact that we disagree and that we disagree sometimes in ways that you can predict based on what kind of a president appointed us.”
Kagan noted that many of her more senior colleagues on the Supreme Court such as Justice Ruth Bader Ginsburg and the late Justice Antonin Scalia were confirmed with overwhelming support from both parties despite their strong views on different issues.
Scalia was confirmed by the Senate 98-0, and Ginsburg was confirmed 96-3.
But Kagan said that for the last four Supreme Court nominees, herself included, each only received a smattering of votes from senators of the opposing party.
“There is so much tit-for-tat that goes on in these processes,” Kagan said. “Everybody has their list of times that they’ve been wronged. The Republicans have their list, and the Democrats have their list, and they seem to be over time ratcheting up the level of conflict rather than trying to find ways to ratchet it down.”
Kagan, who was nominated to the Supreme Court by President Barack Obama in 2010 and confirmed 63-37, warned that party-line confirmation votes “make it seem as though we’re just an extension of the political process.”
“That’s long-term, I think, very unhealthy for the court, and that’s something all of us wish we could get away from,” Kagan said.
In the past, she said, there were times during which it was expected that if a nominee possessed a specific set of qualifications and appeared he or she would be a responsible judge, “the expectation was nevertheless the president was entitled to his Supreme Court pick,” despite possible disagreement over how the nominee may rule.
“That appears not to be the case anymore, and it’s hard to know how to get back to that,” Kagan continued.
Kagan’s comments come as the Senate considers the nomination of Judge Brett Kavanaugh to the Supreme Court.
If confirmed, Kavanaugh would replace retiring Justice Anthony Kennedy on the high court.
Trump’s selection of Kavanaugh as his Supreme Court nominee launched a vicious confirmation battle, with some Senate Democrats criticizing Kavanaugh for his views on executive power and warning his confirmation would damage abortion rights and access to affordable healthcare.
Senate Democrats are currently wrangling with their Republican counterparts over the release of a tranche of documents related to Kavanaugh’s time as staff secretary for President George W. Bush.
Kagan didn’t mention Kavanaugh specifically during the event Wednesday, but the two do have a history: as dean of Harvard Law School, Kagan hired Kavanaugh.
