Will Brennan Get a Mention at Kagan’s Hearing?


For those who follow the Supreme Court, June 28 will be the equivalent of the Super Bowl and the seventh game of the World Series being played on the same day. In the morning, the Court will announce the last decisions of the term, and John Paul Stevens will sit for the last time as a justice. Then, in the afternoon, Elena Kagan will appear before the Senate Judiciary Committee for the start of her confirmation hearings to succeed Stevens.

I’ll be at the confirmation hearings all week covering the proceedings for Congressional Quarterly. I’ll also be listening for any Justice Brennan references.  Justice Marshall is certain to be invoked more frequently, given Kagan served as a clerk in his chambers.  Senate Republicans have seized on the memos she wrote as a clerk, along with her later comments that Marshall and Israeli judge Aharon Barak are her judicial heroes, as evidence she would follow their liberal approach to judging should she be confirmed.

But in recent days, Senator Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, lumped Brennan together with Marshall as justices she shouldn’t emulate. Sessions noted Brennan and Marshall both wrote opinions declaring the death penalty unconstitutional under the Eighth Amendment’s ban on “cruel and unusual” punishment.  (Brennan’s evolving attitude toward the death penalty and his approach to capital punishment as a justice are the subject of an entire chapter in Justice Brennan: Liberal Champion.)

Sessions asked, “How could you possibly construe the document as a whole to say that ‘cruel and unusual’ prevents the death penalty? Well, they did not like the death penalty; Marshall and Brennan did not. They thought it was wrong. They thought the world had developed and moved forward to a ‘higher land’ and they were just going to declare it and the law would follow.”

Sessions has criticized Brennan in Senate floor speeches before. When Gerard Lynch, who clerked for Justice Brennan, was nominated for a seat on the U.S. Court of Appeals for the Second Circuit last year, Sessions voiced concerns that he would be “an activist judge with a philosophy that — too close to my way of thinking with Justice Brennan.” (Sessions still voted to confirm Lynch.)

President Obama also invoked Brennan last year at a White House ceremony honoring Sonia Sotomayor after her swearing-in as a Supreme Court Justice. “Justice William Brennan once said that in order for government to ensure those rights for all its citizens, government officials must be attentive to the concrete human realities at stake in the decisions they make,” Obama said. “They must understand, as Justice Brennan put it, ‘the pulse of life beneath the official version of events.’ The pulse of life beneath the official version of events.”

As a presidential candidate, Obama called Brennan and Marshall – along with Chief Justice Earl Warren – “heroes of mine” but immediately added the caveat, “that doesn’t mean that I think their judicial philosophy is appropriate for today.”

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