Given the Niagara of commentary on the nomination of Elena Kagan to become an Associate Justice of the Supreme Court of the United States, we know very little about the nominee. For friend and critic alike, the predominant view of Ms. Kagan is that she has publically uttered or written remarkably little of her own views on any subject that directly or remotely relates to her forthcoming position. As a law school graduate, brief stint as a practitioner, special assistant on domestic policy to President Clinton, professor of Law and Dean of Harvard Law School, Elena Kagan has been unusually circumspect, despite her lively tenure as editor of the Daily Princetonian while an undergraduate in Tigertown.
Here is how a colleague of equal rank in the Clinton White House describes many group meetings there on important matters: “She never said much, was very pleasant, smiled a lot, the type of person who rises by not giving offense. She almost never engaged in give or take at the often spirited meetings. Her opinions weren’t known. But she is what she is which is exactly what President Obama wants.”
The problem for Ms. Kagan is that there was one occasion where she was wonderfully outspoken — her long review of Professor Stephan L. Carter’s book “The Confirmation Mess” in the University of Chicago Law Review during the Spring of 1995. Taking Professor Carter sharply to task she comes out as a full-throated champion of confirmation hearings that deal with “substantive issues,” adding that the “Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”
Continuing, Ms. Kagan asserts that “[O]pen exploration of the nominee’s substantive views, … 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…).”
Those are strong words in today’s flabby pretense of Senate confirmation hearings of judicial nominees — hearings which Ms. Kagan described later in her review as presenting to the public “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”
So, should you look forward to a spectacular demonstration of fire and brain power between the Senators and Elena Kagan? Not likely. The word is that now she has backed away from such authenticity and so has her boss, Barack Obama.
No one can attribute her earlier stands to being naive about Capitol Hill. To the contrary, her strong stand for robust, serious confirmation hearings on “legal issues,” draws on her experience as Special Counsel to the Senate Judiciary Committee “in connection with the nomination of Justice Ruth Bader Ginsburg to the Supreme Court.”
So, it looks like the first casualty of her nomination will be the authenticity (one of her favorite words) she craved for such nominees as Justices Kennedy, Souter, Thomas, Ginsburg and Breyer, having been quoted years ago as how to evasively behave in order to finesse any controversies during the hearing process.
So since it takes at least two to make a charade game, it is left to the Senators to fulfill the vision of the earlier Elena Kagan when she sits in that chair facing her inquisitors. Some Senators will use the pretext that deep questions on issues and philosophy would compromise the independence of the judiciary — a view Ms. Kagan explicitly rejected in her book review.
Others, being partisan Democrats, want to get the hearing over at super speed, which means a few pro forma questions. A few will take their constitutional responsibilities or their partisan roles seriously and probe into her qualifications — such as not coming from a judgeship background — or her imputed ideological biases.
In any event, this state of affairs is not the worst of the confirmation process. The deterioration reaches the exclusion of witnesses that reflect just the wide range of questions and judgments that Ms. Kagan championed.
I know this from my own request to testify, for example, on the Roberts nomination regarding an ignored area of his experience. I was turned down by the Democrats on the Judiciary Committee.
During the Stephen Breyer nomination, Dr. Sidney Wolfe and I presented detailed testimony regarding Mr. Breyer’s de-regulatory philosophy and the raw empirical reality of human casualties and tortious products that rebut it. That participation would not likely be repeated today. Instead, there are a few carefully choreographed panels of constitutional law specialists, each given five minutes, and all presented as window dressing after, not before or between, the testimony and questioning of the nominee.
So, short of a cumulative public protest before the hearings begin in July, expect the words of assistant professor of law, Elena Kagan, to be relegated to an everlasting limbo as an expression of youthful exuberance replaced by the political realism of autocratic minds.