Top U.S. justice faces strong cross
U of T law students lay heavy questions on Kavanaugh colleague
The shadow of U.S. Supreme Court Justice Brett Kavanaugh hung over the room Monday as his colleague Justice Elena Kagan spoke to law students at the University of Toronto. Kagan, nominated to the country’s top court by former president Barack Obama in 2010, was in town to receive an honorary law doctorate. She spoke afterward in conversation with Supreme Court of Canada Justice Rosalie Abella. The focus was on the divisiveness regarding recent Supreme Court nominations south of the border and the portrayal of the court as an increasingly partisan institution.
In the question-and-answer period with students at the end of the talk, a student told Kagan she regretted asking her ques- tion, but said she and many of her classmates and law professors watched the Kavanaugh Senate confirmation hearings in September “with a little pain in our hearts.” “I’m wondering what you think the role of the Supreme Court is and how it can be considered legitimate in its treatment of women who have experienced violence when you have not one but two justices who have been levelled with credible accusations and the appointment process has put them forth,” she asked, referring to sexual-misconduct allegations made against Kavanaugh and Justice Clarence Thomas.
Kagan replied: “You’re right, you should not have asked me that question, and I’m sorry to say that but there are some questions that — I’m part of this institution, I care about it a lot, I care about my colleagues a lot and that’s something that I’m not going to be talking about.”
It was a slightly tense moment during an otherwise jovial dis- cussion between the two judges, with Abella kicking it off by telling Kagan that Canadians were glued to their TVs during the Kavanaugh confirmation hearings.
“I think it’s on everybody’s mind, who watched the recent hearing: Do you like beer?” Abella asked Kagan, a nod to U.S. senators inquiring during the hearings whether Kavanaugh had a drinking problem.
Kagan dodged the question, asking Abella if Canada has confirmation hearings for Supreme Court justices. “No, we have the merit system,” Abella replied.
People laughed and she said “No, no” but then jumped to something else. (Canadian Supreme Court justices are appointed by the governor general on the advice of the prime minister, without having to be confirmed by a legislative body.) Kagan acknowledged when questioned by Abella that confirmation hearings — which were incredibly tense and protracted in the Kavanaugh case — are not working in their current form.
“It seems good to me from the perspective of transparency of governance, people (senators) taking their constitutional role seriously and having an opportunity to see a person, and to try to figure out what kind of justice she or he would be, and in the abstract I think that’s a good thing,” Kagan said.
“In the concrete, it’s a little hard to watch any of these hearings and think they accomplish all that much.”
She also reiterated several times that her court is not as politicized as it is often portrayed, where the Republican nominees all rule one way and the Democrat nominees the other. She described the differences between her colleagues as less about politics and more about different understandings on how to interpret the constitution.