Saturday, June 26, 2010

Legal historian on witness list for Kagan hearings

I'm a little curious about the appearance of Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law on the list of Republican witnesses testifying at Elena Kagan's Supreme Court confirmation hearings, which begin on Monday. What might be the constitutional/legal history argument against the confirmation?


  1. You can view Stephen Presser's comments at the Senate Judiciary Committee's website. They begin about minute 139:30

    His comments relate to the use of foreign authority in the Supreme Court.

  2. Thanks, Al. Also, finally, the transcripts of the hearings are available via the Washington Post:
    Easier than scrolling through video....

  3. I think the Post only has the hearing transcripts for Kagan's testimony, not the other witnesses, so for the time being we seem to be limited to the video version of Presser's testimony. I hope the transcripts of the other-than-Kagan witnesses will be up on the judiciary's website sometime soon.

    Now that the hearings are over, it's time for ... picking out high points of the hearings for the legal history world.

    My vote goes to an off-hand comment that Dean Clark made about divisions on faculties (at minute 167). He said something along the lines of -- faculties divide on issues other than politics; a lot of the division is over methods, like "whether you think historians are worth reading or whether you think economic analysis with a lot of quantitative data means anything."

    Another highlight for me (though not so important for legal history) is Senator Sessions' question (at minute 152) of whether Jack Goldsmith considers himself a conservative? Perhaps I'm reading more into this than I ought, but it struck me that Sessions was skeptical about Goldsmith's conservative credentials.

    On a more serious point, legal historians may be interested in the Coburn-Kagan exchange about natural rights.

    One question: why all this talk of Blackstone? I thought we aren't supposed to cite foreign sources any more.

  4. To satisfy Mary's curiosity a little bit; from what I can put together I was asked to testify in the Kagan hearings by the minority counsel to the committee, who indicated they wanted someone to speak on the recent use of foreign authority to interpret the U.S. Constitution. I thought it was an interesting opportunity for a legal historian to comment on that, and contrast it with the use of the law of nations in Constitutional and legal interpretation, something I teach my students about. I thought it was also an opportunity to get on the record some reflection on how far we've come from Hamilton's remarks in Federalist 78 (quoting Montesquieu) that in order to avoid tyranny the judicial function should be separated from the legislative. This was about the tenth time I've testified in a Congressional hearing. My experience is that both members of the House and Senate are open to hearing about the history of interpretive practices.

  5. Here's another version of Professor Presser's testimony: