David S. Law, a Washington University in St. Louis professor, agrees with Scalia that the court’s use of legislative history has diminished over the years.
But he and fellow researcher David Zaring did not attribute that diminishment to Scalia’s influence. Perhaps more important, they said, was the more dominant roles conservatives play on the court.
“Liberal justices are generally more likely than conservative justices to cite legislative history,” they found. “The decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the court,” they said.
Nevertheless, Law said in an interview, the court’s conservatives are not uniformly opposed. “If I was arguing and I thought legislative history was helpful, I’d use it,” he said.
Sessions vs. Kagan
It’s not over between Sen. Jeff Sessions (R-Ala.) and Justice Elena Kagan.
Sessions was one of Kagan’s toughest critics on the Senate Judiciary Committee when she was nominated by President Obama in 2010. Last week, he revived his complaints about her when he became one of only two committee members to vote against Maine lawyer William J. Kayatta Jr., whom Obama nominated to the U.S. Court of Appeals for the 1st Circuit.
Kayatta’s transgression, according to Sessions, is that he was the lead investigator for the American Bar Association panel that gave nominee Kagan its highest rating — “Unanimous Well-Qualified.”
Given that Kagan had never been a judge and had little experience in private practice, Sessions said, such a rating “was not only unsupported by the record but, in my opinion, the product of political bias.”
Kagan had been a law professor at the University of Chicago, worked in the Clinton White House as a lawyer and policy adviser, was the first female dean of Harvard Law School and served for a year as solicitor general before her nomination.
Sessions softened the criticism a bit. “I am not suggesting that he should have concluded that Ms. Kagan was unqualified,” he said.
To read previous High Court columns by Robert Barnes, go to postpolitics.com