Roughly since dinosaurs walked the earth, Supreme Court confirmation hearings have featured the spectacle of Republicans and Democrats alike rearranging their principles depending on the party of the nominating president and the nominee. The hearing on Elena Kagan, who completed her testimony Wednesday with other witnesses scheduled to testify late Thursday, has been no exception. On the importance of precedent, on “judicial activism,” on whether past political allegiance is a mark against a judicial nominee, and more, what one might think are neutral principles seem to vary depending on senators’ political allegiances.
In his questions–speeches, really–to Kagan this morning, for example, Rhode Island Democratic Sen. Sheldon Whitehouse seemed mightily outraged by the Roberts court’s overruling of two precedents to reach its 5-4 decision in January striking down a longstanding federal ban on campaign spending by corporations in Citizens United v. Federal Election Commission. But neither Whitehouse nor any of his Democratic colleagues has been heard to complain of decisions by the more liberal justices to overturn conservative precedents (the 2003 ruling striking down laws against gay sex and overruling a major 1986 decision called Bowers v. Hardwick comes to mind).