Confirmation Messes: New

As Elena Kagan’s confirmation hearings opened today, Senators repeatedly reminded her about her previous criticisms of the vacuity of Supreme Court confirmation hearings and encouraged her to set a precedent for a more frank confirmation process.

In her 1995 article for the University of Chicago Law Review,“Confirmation Messes: Old and New,” Kagan writes that she believes “…the President and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument.”

Kagan writes,

“Open exploration of the nominee’s substantive views, that is, enables senators and their constituents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee); and the process used in the Senate to serve the intertwined aims of education and evaluation ought to reflect what most greatly matters. At least this is true in the absence of any compelling reasons, of prudence or propriety, to the contrary; later I will argue, as against Carter, that such reasons are nowhere evident” (emphasis added).

“The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind [Stephen L.] Carter would forbid: discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues,” wrote Kagan.

“By ‘judicial philosophy’ (a phrase Carter berates without explanation),” she continues, “I mean such things as the judge’s understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory.”

“A nominee’s views on these matters could prove quite revealing: contrast, for example, how Antonin Scalia and Thurgood Marshall would have answered these queries, had either decided (which neither did) to share his thoughts with the Senate.”

“A focus on substance in fact would cure some of the deficiencies in the confirmation process that Carter pinpoints,” she writes.

Senators from both sides of the aisle indicated in their opening statements that they intend to take advantage of Kagan’s call for increased candor.

“Your judicial philosophy is almost invisible to us,” said Senator Herb Kohl, D-Wis., during today’s hearing. “…As you said in your own critique of these hearings in 1995, it is ‘an embarrassment that Senators do not insist that a nominee reveal what kind of Justice she would make by disclosing her views on important legal issues.’ … this hearing is the only opportunity for the American public to learn who you are.”

“As in previous hearings, there will no doubt be some tension during this hearing between what Senators want to know and what [Solicitor] General Kagan is willing to tell us,” said Sen. Orrin Hatch, R-Utah. “Unlike previous hearings, however, Ms. Kagan has already outlined quite clearly what she believes a Supreme Court nominee should be willing to talk about in a hearing like this.”

“Ms. Kagan identified the critical inquiry about a Supreme Court nominee as “the vote[s] she would cast, the perspective she would add and the direction in which she would move the institution,” added Sen. Hatch.

Bethany Stotts is a staff writer at Accuracy in Academia.