By David Kairys, a law professor at Temple University, visiting professor at University of Miami, and leading civil rights lawyer. Kairys is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer, and his other books include his co-authored leading progressive critique of the law, The Politics of Law.
After the first two days of the Kagan confirmation hearing, I doubted I would have anything to add to my reaction to the Sotomayor hearing - It's Hard to Watch. The senators and the nominee seem once again locked in a debate over who has the most passive vision of judging, and the rules and assumptions of the debate are generally embedded in and promote conservative ideas about the substance and process of law.
But Senator Sheldon Whitehouse (D., R.I.) riveted my attention on day three wit
h his determination to show that Kagan and he share an intense commitment to following precedents. Kagan, who is doing quite well and will be deservedly confirmed, has been articulating as strong a regard for "deference" to prior decisions as I have seen in any confirmation hearing, or in any Supreme Court opinion, law review or scholarly conference for some time.
Conservative justices, including former Chief Justice William Rehnquist, have been for a few decades ignoring precedents - and openly doubting the importance of precedents - as they have pretty much devastated liberal precedents whenever they can find five votes that have a different view.
Justice O'Connor was tellingly honest about this in her majority opinion in Adarand v. Pena, the 1995 case invalidating an affirmative action plan for federal contractors although a prior case approved a similar plan only several years before. She said, "Remaining true to an intrinsically sounder doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it."
I responded to this in a law review - "If stare decisis has any significance at all, it would seem to be that decisions with which the current justices disagree have some authoritative or binding effect" - and proposed that the definition of stare decisis be revised to comport with the new conservative understanding.
"If you've got Justice Anthony Kennedy on your side, you can pretty much do what you want. Without him, you're the author of an angry dissent," 
Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.