ACS Event Video: Examining the Nomination of Elena Kagan to the Supreme Court

June 9, 2010
During a recent ACS event examining the nomination of Solicitor General Elena Kagan to the Supreme Court, Walter Dellinger, a constitutional law expert, took issue with conservatives' rejection of the so-called "empathy standard." Dellinger, chair of O'Melveny & Meyers' Appellate Practice and former Acting Solicitor General during the Clinton administration, said, "I feel really sorry for empathy. Empathy has been thrown under the bus. I think that's too bad. What the president was intending to convey, I would embrace the ‘e' word fearlessly. In some sense, it is nothing more than what Oliver Wendell Holmes said, the life of the law has not been logic, it has been experience. And the whole notion of balls and strikes and judges as umpires presents a view of the Constitution that in some ways delegitimizes parts of our constitutional text and constitutional tradition."

The panel discussion moderated by Amanda Frost, a law professor at American University, included Rachel Brand, former assistant attorney general for legal policy in the George W. Bush administration, and Thomas Wilner, who represented Guantanamo Bay prisoners in the cases Rasul v. Bush and Boumediene v. Bush. Watch the entire event by clicking here or on the picture.