The Kagan Hearings: Were They Necessary and Worthwhile?

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."

As experts digest the hearings, none said Kagan blazed new trails for how confirmation hearings should be held. But most said they thought the hearings were a useful exercise.

"If you expect a probing, far-reaching moment for the nation and for constitutional law, that's an unrealistic expectation," said Bradley Joondeph of Santa Clara Law School.

"Confirmation hearings are like oral arguments at the Supreme Court itself," Joondeph said. "They rarely change opinions, but the process of creating a moment of time to think through these issues -- for everyone involved -- is quite useful."

Lori Ringhand of the University of Georgia School of Law co-authored a recent study that examined every question asked and every answer given at Supreme Court confirmation hearings since 1939.

"Hearings are always worthwhile," she said. "What they provide us with is a very high-profile opportunity to have a nationwide conversation.

"It's a process through which we provide a democratic pedigree to constitutional change that over time has become a part of our deep constitutional consensus," she said.

She pointed to the case of Brown v. Board of Education, the landmark 1954 decision that led to the desegregation of schools.

"It was legally controversial when it was decided, but today it represents a core part of our constitutional understanding," Ringhand said. "Nominees today, therefore, repeatedly and appropriately affirm Brown. Part of what is happening is that the nominees are saying they are on board with our current Constitutional agreement."

Joondeph saidKagan's description of the role of a judge says a lot about what kind of justice she would be.

Sen. Amy Klobuchar, D-Minnesota, asked Kagan about a metaphor Chief Justice John Roberts used in the opening statement of his own confirmation hearing, when he said, "Judges are like umpires. Umpires don't make the rules; they apply them."

Kagan take on the Roberts philosophy?

"Like all metaphors, it does have its limits," she said. The "metaphor might suggest to some people that law is a kind of robotic enterprise, "that there's a kind of automatic quality to it, that it's easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut ... that there is no judgment in the process."

Kagan continued, "I do think that that's not right. And it's especially not right at the Supreme Court level. ... Judges do, in many of these cases, have to exercise judgment. They're not easy calls."

Curt Levey the executive director of the conservative Committee for Justice, praised her performance.

"Performance wise-I would give her an A," Levey said.

Levey was most concerned about her opinions regarding the Second Amendment's right to bear arms. He felt that the hearing provided a thorough exploration of the issue.

"I was glad that the senators asked about it," Levey said.

Levey was pleased that a day after her testimony, the National Rifle Association came out in opposition of her nomination.

"There is always something to be gained from the hearings," Levey said. "Even if we learn nothing about the nominee, it is the one time the American people pay attention to constitutional law."

Sen. Lindsay Graham, R-South Carolina, who grilled Kagan on issues regarding the legal war on terror, was less effusive than Coburn but he, too, praised Kagan at the end.

"I wish you well." he said. "You have handled yourself well. We have some differences. I think the hearings have been, on the margins better, but not a lot better than they've been in the past."