WASHINGTON, May 7, 2010 -- 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.
Supreme Court Contender Critical of Confirmation Process in 1995
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."
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.