Kagan argues that the Bork hearing should be a "model" for all others, because even though it ended in the candidate's rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.
"The real 'confirmation mess' " she wrote, "is the gap that has opened between the Bork hearings and all others."
"Not since Bork," she said, "has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."
"The debate focused not on trivialities," she wrote, but on essentials: "the understanding of the Constitution that the nominee would carry with him to the Court."
Most importantly the debate "captivated" the public. "Constitutional law became, for that brief moment, not a project reserved for judges, but an enterprise to which the general public turned its attention and contributed."
But Yalof cautions that Kagan's hopes for more engaging hearings might not be realistic. "It's a noble notion that you should do what Bork did. But Bork didn't succeed. I don't know how any incentive system can be set up when by engaging Congress a candidate might lose."
And since the Bork hearings? Kagan calls the confirmation hearings of then Judges Ruth Bader Ginsburg and Stephen Breyer, "official lovefests" because "both nominees felt free to decline to disclose their views on controversial issues and cases" and that the senators greeted their "non answer[s]" with "equanimity and resigned good humor."
Referring to the Ginsburg hearings, Kagan wrote that her "favored technique" to answer questions "took the form of a pincer movement." Ginsburg refused to speak about specific cases but "when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypothetical's took the good judge beyond her calling."
Kagan thought the hearings for Justice Breyer were "smoother" than Justice Ginsburg, "but ultimately no more forthcoming."
She allows that both candidates "did provide snippets of information" , but that they knew they were "playing the game in full accordance with a set of rules that others had established before them" in order to take the "safest and surest route" to attaining a seat on the high Court.
Kagan saves blame for Congress. "Who would have done anything different," she asks, "in the absence of pressure from members of Congress?"
Kagan's bottom line, written before the confirmation hearings of Justice Samuel Alito or Chief Justice John Roberts, is that the Senate needs to focus on substantive issues and "promote public understanding of what the nominee believes the Court should do and how she would affect its conduct."
She urges the hearing to explore a candidates' judicial philosophy including her understanding of the role of courts in society, the nature of the values embodied in the Constitution and the tools of interpretation.
If President Obama chooses Kagan as his second nominee for the Supreme Court, she has raised the bar for her own hearings.