Senate Should Reject Kagan Nominiation

The Senate should reject President Obama’s nomination of Elena Kagan to the Supreme Court. Kagan’s experience is inadequate and her general jurisprudential views are largely unknown. Therefore, senators cannot vote “Aye” consistently with their oath of office.

According to the Constitution, presidents can appoint justices of the Supreme Court “by and with the advice and consent of the Senate.” Note that “by.” It means that the President makes appointments through the Senate’s advice and consent. In other words, appointment is not a presidential action to which the Senate consents. Rather, it is the action of the President and Senate together.

The Senate’s responsibility for the appointment is as great as the President’s. The long-standing habit of some senators deferring to the President in the absence of a flagrant reason not to confirm his nominee needs to be corrected.  A senator should not vote to consent to any appointment he would not make himself—because “by” his “consent,” he is, in essence, making the appointment himself.

The Kagan appointment surely cannot be any responsible senator’s idea of ideal candidate for the high court. Kagan has a very scanty record from which one cannot draw any confident conclusions. Additionally, unlike virtually every appointee of recent vintage, she has no judicial experience.

Beyond that, in her career as an academic, Kagan has published exceedingly little: only three law review articles. The ease of publishing in student-edited law journals makes this deficiency particularly notable.

If Kagan has no judicial experience and a scanty record of scholarly productivity, what accounts for her nomination must be the opacity of her views itself. Here, Kagan’s nomination represents a trend of the last 23 years.

It was in the summer of 1987 that Justice Lewis Powell resigned and President Ronald Reagan nominated Judge Robert Bork as his replacement. Bork, a very accomplished academic, scholar, former solicitor general, and federal appellate judge, could hardly have been surpassed in terms of qualifications.

However, Bork made a tactical mistake: He decided to engage senators in extensive public discussion of the Constitution and constitutional law. His chief contentions were that the two were different and that they should not be.

The process was less a national seminar on the Constitution than a political campaign. Senators, led by Joe Biden and Arlen Specter, seemed essentially unprepared for the argument in which Bork engaged them.

In the wake of the Bork nomination’s blazing defeat came a new tradition. Where formerly outstanding legal and political personalities such as Felix Frankfurter, Robert Jackson, Abe Fortas, and Antonin Scalia had been nominated to the Supreme Court, we had entered the era of Harriet Miers, Anthony Kennedy, and Clarence Thomas.

If the Senate did not know a nominee’s views, the theory said, it could not “Bork” him. Academic and judicial accomplishments were undesirable. Non-entities were at a premium. The Senate, alas, went along.

Interestingly, Kagan has argued that this trend ought to come to an end. In one of her few publications, she decried the “vacuity” of recent Senate confirmation hearings, lamenting “the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate.”

Not only did Kagan say that the Senate should elicit commentary from the nominee about her general jurisprudential views, she also said that senators were entitled to obtain assurances from potential justices about matters that were likely to come before the court. Pooh-poohing the implications regarding judicial independence, Kagan (rightly, in my view) said that such independence was secured by the Constitution’s insulation of judges from political pressure.

In other words, while not yet a nominee, Kagan advocated extensive, detailed interrogation of nominees.

Kagan was right:  If the Senate is to play its wonted role in the appointment process, it must have her spell out her jurisprudential views and explain her approach to prominent issues in contemporary constitutional disputation.

President Obama clearly has received all the assurances he needs concerning her views. So, for example, he has said that her attitude concerning the First Amendment was one mark in her favor.

What the President meant was that Kagan agrees with him concerning the Supreme Court’s recent decision in Citizens United v. FEC. In that case, the Court ruled 5-4 that Congress could not limit particular types of political advocacy. Obama was so agitated by the decision that he upbraided the court’s majority for their decision during this year’s State of the Union Address.

As it happens, nominees’ 1st Amendment views are among those that Kagan has said the Senate should require nominees to explore.

If Obama is entitled to interrogate the nominee concerning her opinions, so is the Senate. Let it do so. If she refuses to answer, let senators refuse her the appointment.