If potential Supreme Court nominee Elena Kagan ever makes it to the Senate Judiciary Committee for confirmation hearings, she might have to explain comments she once made that modern day confirmation hearings have become a "vapid and hollow charade."
In 1995, after spending time as a staff lawyer on the judiciary committee during the nomination of Justice Ruth Bader Ginsburg, Kagan made clear her frustrations: "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's opinion appears in a 1995 book review of "The Confirmation Mess" by Stephen Carter. In her lively and at times humorous piece, Kagan takes issue with Carter's 1995 thesis that the process has broken down, in part, because Senators are too focused on getting candidates to reveal their views on important legal issues.
On the contrary, Kagan wrote, the process has not broken down because nominees are pressed too hard, but because they are not pressed hard enough.
"Senators effectively have accepted the limits on inquiry," Kagan wrote. She said the process had become one where "repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."
Blaming both the nominees for stonewalling at times and the Senators for failing to probe, Kagan wrote that the hearings "serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government."
In 1995 Kagan probably had little idea that fourteen years later she would actually find herself appearing as a nominee in front of the very same Senate Judiciary Committee. Indeed, in 2009 ,Kagan appeared as a nominee for her ultimately successful nomination to the be the nation's first female Solicitor General.
Sen. Orrin Hatch, R-Utah, asked her about her book review and she jumped at the chance to back down, a bit.
Kagan responded that she wrote the review after serving on the committee and "feeling a little bit frustrated," but she said that she agreed with Hatch that there had to be a balance between the Senate getting the information it needs and the candidate refraining to answer some questions to preserve impartiality.
Kagan's beliefs, outlined in the book review, are shared by many who think that the confirmation hearings have lost their value because they fail to present a serious discussion of the meaning of the Constitution, or the role of the court, or the views of the nominee.
In the book review, Kagan wrote that the last truly substantive hearing was that of Reagan nominee Robert H. Bork, who failed in 1987 to get Senate support for his nomination to the high court. Many felt that Bork was in part to blame for his failure as a nominee because he answered so many questions about his legal philosophies that Senators were more easily able to oppose him.
"The Bork hearings were the last hearings where a nominee was able to engage the Senators," said David Yalof, a political science professor at the University of Connecticut. "But Bork lost. Candidates since have followed the anti-Bork blueprint. The Souter blueprint if you will: say as little as possible without the appearance of stonewalling and you will be successfully confirmed."