Elena Kagan in 1995 argued that Supreme Court nominees should have to answer direct questions from senators about specific issues and pending cases, criticizing a confirmation process that avoids direction questioning as a “vapid and hollow charade.”
The argument figures to be a major point of attack for conservatives during Kagan’s confirmation hearings as they press for her views on issues ranging from abortion to campaign finance law to same-sex marriage to executive power to the role of the government as it relates to the private sector.
“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce,” Kagan wrote in a 25-page book review that appeared in the University of Chicago Law Review.
“The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution,” Kagan wrote, arguing that Justices Ruth Bader Ginsburg and Stephen Breyer both gave far too little information about their views during their confirmation hearings.
“The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the court’s decisions,” she wrote.
“If that is too results oriented … so be it.”
Kagan also said that “it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”
Kagan’s position in the review article is particularly relevant since one of Kagan’s greatest advantages as she enters the confirmation process is that little is known about her views due to the absence of a judicial “paper trail.”
During hearings to confirm her as solicitor general a year ago, Kagan disavowed her 1995 essay and said she had had a change of heart.
“I’m not sure that, sitting here today, I would agree with that,” she said.
Nonetheless, conservatives Monday had begun to make Kagan’s review article a central plank of their strategy to fight her nomination.
“In the past Solicitor General Kagan has advocated Senate hearings that thoroughly examine a nominee’s judicial philosophy. Senators must hold her to her own standard, particularly given the scant record of her personal viewpoints she has carefully maintained,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.
Sen. John Cornyn, a Texas Republican on the Senate Judiciary Committee, said that during her confirmation hearings for solicitor general, “Ms. Kagan failed to answer many questions posed by Senators.
“This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions,” Cornyn said.
But one Democrat, Sen. Arlen Specter, who was a Republican last year when he voted against Kagan for solicitor general, also raised red flags about Kagan’s lack of candor.
“I voted against her for Solicitor General because she wouldn’t answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice,” said Specter, whose name Kagan misspelled as “Spector” in her 1995 article.
“I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power,” Specter said.
Kagan’s law review article argues that since the 1987 confirmation hearings of Robert Bork — in which President Ronald Reagan’s nominee was rejected by a Democratic-controlled Senate for his conservative views — senators had shied away from asking pointed questions.
“They instead engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner,” she wrote.
Kagan indicated that while discussion of “judicial philosophy” is needed, she thought most senators do not understand the law well enough to draw out key information simply through that route.
“Responses to such questions can and have become platitudinous, especially given the interrogators’ scant familiarity with jurisprudential matters.”
Sen. James Inhofe, Oklahoma Republican, said late Monday that he was “concerned about the seeming contempt [Kagan] has demonstrated in her comments about the Senate confirmation process.”