The Kagan Hearings: Were They Necessary and Worthwhile?
Experts say the at-times-"vapid-and-hollow" Senate hearings are useful.
WASHINGTON, July 2, 2010— -- Republican Sen. Tom Coburn of Oklahoma couldn't resist a dig at Elena Kagan when it was his turn to ask his first question at her confirmation hearing. He accused her of "dancing around" some of his colleague's questions.
"Maybe you should be on Dancing with the Stars," he said for effect.
The two then explored several contentious legal issues, such as the use of foreign law, the original intent of the Constitution and the definition of judicial activism. They held a discussion on the Commerce Clause, which will be at the center of the legal challenge to the recently passed health care legislation .
By the next day, at the end of Kagan's testimony, Coburn complimented her. He said that he had participated in four Supreme Court confirmation hearings -- two of which featured Republican nominees -- "and I think this has been one of the best."
Kagan beamed.
Ironically, Kagan has been a fierce critic of modern-day confirmation hearings. In 1995, as a professor at the University of Chicago Law School, she wrote an article calling modern confirmation hearings a "vapid and hollow charade."
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She said that senators failed to engage in substantive discussions and that nominees should comment on everything from judicial methodology to controversial legal issues and prior case law.
Not surprisingly, at her own hearings, she backtracked from her earlier criticism, noting that the issue looked a lot different from the perspective of a nominee.
"I think that, in particular," she said, "it wouldn't be appropriate for me to talk about what I think about past cases -- you know, to grade cases -- because those cases themselves might again come before the court."
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