How much detail about her legal opinions and thoughts will Supreme Court nominee Elena Kagan offer during her Senate confirmation hearings?
Not much, in all likelihood, if recent experience is any guide. But past comments from both Kagan and President Obama suggest that at one point both of them believed hearings like these needed to be extremely thorough.
When President George W. Bush nominated Harriet Miers to the high court in 2005, then-Sen. Obama argued that her lack of judicial experience suggested her confirmation hearings needed to be more probing than those for judges.
“Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.” The comments were first noted by The Washington Post’s Greg Sargent.
Kagan in 1995 said Supreme Court confirmation hearings had become meaningless. Writing a book review of "The Confirmation Mess" by Stephen Carter, Kagan wrote that when “the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."
Carter had written that the process had broken down because Senators on the Judiciary Committee focus too much on getting nominees to reveal their thoughts on legal issues. Kagan took issue with that thesis, saying that Senators actually didn’t press hard enough.
"Senators effectively have accepted the limits on inquiry," Kagan wrote, suggesting the process had become one where "repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."
She heralded the confirmation hearings for failed nominee Robert Bork, the last one, she said, when a Supreme Court nominee really engaged with the Senators.
"The real 'confirmation mess' is the gap that has opened between the Bork hearings and all others,” Kagan wrote. "Not since Bork has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."
Kagan has – perhaps not surprisingly – since backed off from her 1995 stance. During her 2009 confirmation hearings to become Solicitor General, she was asked about the book review.
“I’m not sure that, sitting here today, I would agree with that statement,” Kagan said. "I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought," she said.
Sen. Orrin Hatch, R-Utah, has asked Kagan to “square” her book review “with the principle that judges must be impartial and with the oath they take to provide justice without respect of persons?”
Kagan agreed with Hatch, saying “this has to be a balance. The Senate has to get the information that it needs, but as well, the nominee for any particular position, whether it's judicial or otherwise, has to be protective of — of certain kinds of interests, and you named the countervailing ones.”
Drips and drabs of Kagan’s legal advice during her past jobs have emerged in recent days: A memo she wrote as a clerk to Justice Thurgood Marshall recommending against his granting a hearing to a gun rights advocate; one she wrote to President Clinton as an associate White House counsel supporting a ban on some abortion procedures.
The White House somehow managed to score an interview with Kagan in this video, though they didn’t ask her views on any hot button topics.
Certainly Republican Senators have in the past advocated reticence from more conservative nominees. Sen. John Kyl, R-Ariz., told the Senate in 2005 that he'd told nominee John Roberts "that I would defend his position in complying with the canons of judicial ethics, and the traditions of the committee not to testify in ways that could signal how he might rule on a matter that was likely to come before the court. That is the proper standard, he adhered to that standard, and I defend his right to do so."
But some progressives are advocating quite the opposite with Kagan.
Writing in The Nation, Ari Melber says that the Kagan "interview" video, "like the White House, aims to divert rather than answer public questions about this important nominee…The broader issue is whether the U.S. Senate will find a way to dispense with a review of judicial nominees that purports to ignore ideology and judicial values – a process that everyone who is not up for confirmation rightly sees as, yes, a charade…Many people would prefer an honest airing of the views, ideology and legal principles of the people headed for the most powerful lifetime job in America. President Obama may have uncorked more than he bargained for, in nominating a qualified, talented but largely unknown attorney — who happens to have a clear record supporting ideological candor for nominees — in order to fill the large, liberal shoes of Justice John Paul Stevens.”
“Let's learn more about her,” Melber writes. “Here's hoping the White House will free Elena Kagan. Or that she frees herself.”
In other words: Release the Kagan!
- Jake Tapper