In Kagan’s hearings significant changes were revealed in how the parties approach justice.  It was the Democrats who were concerned about legislation from the bench, concerned as they were by the threat the Court poses to the Democratic political agenda, from regulating oil drilling, to delivering healthcare reform, to controlling the use of guns in this very violent country of ours.  The Republicans, on the other hand, while making gestures against judicial activism, were cheering it as it served their political ends, equating campaign contributions as speech, granting corporations the right of free speech, selecting a President.

For many, on the Republican extreme, indeed, the Constitution has come to be identified with their anti-government agenda, their agenda for keeping the Reagan revolution alive. At the Kagan confirmation hearings this political confrontation was perfectly clear.
I do worry about the balance and direction of the court, given my political commitments. I wish the balance of the court would change, just as those who are happy with the character of Roberts’ Court would like to see it sustained.  I observed the hearings with an understanding of the two sides, and I knew which side I was on, which team I was rooting for.  I think that the confirmation hearings were a great success demonstration of the political issues involved.  In this sense they were a great success.

But I have a special concern, a sociological one that is not strictly speaking political.  It concerns the issue of free speech and free public life more generally.  I fear that a political cultural ideal is being compromised, by one side, the other side of the great political debate.  I know that a free public life depends upon keeping intellectual traditions alive.  This I learned from my learned and principled conservative teacher Edward Shils when I sat in his seminar on traditions, which later became a highly influential book.   I also learned and know that markets and states, money and political power can both support and undermine such traditions.

I worked on this issue in my book On Cultural Freedom: The Exploration of Public Life in Poland and America.  My major finding: markets don’t guarantee cultural or political freedom, nor do states; both markets and states support and undermine cultural freedom, specifically free speech.  A key issue is whether individuals and groups can take part in public life.  Can they have a free discussion with their contemporaries and respond to their predecessors, and in the process support the development of cultural traditions?

When money is more readily available to one party, its opposition and its supporters, may not manage to be visible to or persuade the public.  Creating a system that advantages some, in this case the wealthy, does give them voice, but it also silences others, those who don’t have money.  Some seem to be more equal than others in this emerging configuration.  This needs to be critically examined, not because one or another party would be favored, but a key democratic ideal is at issue.

This is a principled issue that should move beyond politics.  The confirmation hearings of Elena Kagan showed that it hasn’t.

Thoughts on Sotomayor:

A significant portion of the population in the United States is not comfortable with an African American President.  This very seriously has shaped official public debate, clearly in the confirmation hearings of Justice Sonia Sotomayor.  The New York Times reported about Sotomayor’s leading critic in the Senate before the confirmation hearings:
Senator Jeff Sessions of Alabama, the highest-ranking Republican on the Judiciary Committee, said the fairness issue was “the core of the American system” and was central to Republicans’ qualms.

“Every judge must be committed every day to not let their personal politics, their ethnic background, their biases, sympathies influence the nature of their decision-making process,” Mr. Sessions said Sunday on the CBS program “Face the Nation.”

Mr. Sessions pointed to what he called Judge Sotomayor’s advocacy positions and to her widely publicized remark that a “wise Latina woman” would make better judicial decisions than a white man.

“I am really flabbergasted by the depth and consistency of her philosophical critique of the ideal of impartial justice,” Mr. Sessions said. “I think that’s a real expression of hers.” (link)

The underlying theme of the Republican questioning of Sotomayor was revealed in Sessions’ statement.  There was the proposition that because she thought that the special insights and experiences of people with different identities could improve the quality of justice, she somehow was less committed to the ideals of impartial justice.  Over and over, the Republican Senators returned to one quotation from her public speeches, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” (link)

The principle reason given for opposing Sotomayor was that she didn’t believe in equal justice.  Could it be that this was serious?  What she meant is really not complicated.  Bringing in new perspectives improves the pursuit of justice.  People who have been excluded add something important, and they can be proud of it.  Of course, if one wants to be suspicious one could read more sinister meaning into her words.  If one is uncomfortable with the changing attitudes towards diversity, in which it is understood as a societal strength most clearly represented in the words, deeds and person of President Barack Obama, a Supreme Court Justice who works with this strength is indeed most threatening. Sessions understanding of Sotomayor is more a consequence of his suspicion and fear than of her words.  It fuels conservative politics, has little to do with impartial justice, which is indeed a fundamental ideal.