Put Nominee on the Stevens Hot Seat; Ask Her What She Respects about a Notorious Judicial Activist

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Even the most hopeful conservatives should not expect Senate Republicans to derail President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court. Ms. Kagan's credentials are impressive, she has a modest paper trail, and the Democrats still have a sizable majority in the Senate. But the Republicans can achieve important goals during the confirmation hearings, which began Monday. Obviously, they should use the hearings to learn more about Ms. Kagan's judicial philosophy, but they also can prepare themselves - and the American people - for the more contentious battles that may lie ahead with the next vacancy on the high court.

One way to do this is to focus on the judicial record and philosophy of Justice John Paul Stevens, the man whom Ms. Kagan was chosen to succeed. After being nominated, Ms. Kagan effusively praised Justice Stevens, remarking that the nation was fortunate beyond all measure to have had him on the court for 35 years. Such praise may have been prompted largely by considerations of decorum, but Republican senators should ask Ms. Kagan whether she truly holds Justice Stevens in such high regard. If her judicial views align with his, especially on matters of constitutional law, they should press her on a more fundamental issue - namely, whether those views can be reconciled with our nation's commitment to representative democracy.

For conservatives, Justice Stevens' career on the Supreme Court is a lamentably familiar tale. Nominated by President Ford in 1975, Justice Stevens became increasingly liberal in his reading of the Constitution as the years passed. He thus set something of a precedent for other justices nominated by Republican presidents, including Sandra Day O'Connor, Anthony Kennedy and David H. Souter, all of whom veered leftward after joining the court.

Justice Stevens' liberal reading of the Constitution is evident in many places. Consider his interpretation of the Eighth Amendment, which prohibits the infliction of cruel and unusual punishments.

In Ewing v. California (2003), the court upheld a California law requiring mandatory sentences for persons convicted of three felonies. In the 1990s, roughly half the states passed such legislation, commonly known as three-strikes-and-you're-out laws. The majority in Ewing correctly maintained that nothing in the Eighth Amendment forbids California from promoting the public safety by adopting such laws. In other words, neither the text nor logic nor original understanding of that amendment precludes any state from acting as California did. …