Vague or evasive answers have characterized some recent confirmation hearings for the Supreme Court. But Elena Kagan, President Obama’s nominee to the high court, believes that is a bad idea. At least she used to think so.
Speaking about the failure of Stephen Breyer and Ruth Bader Ginsburg to give adequate answers during their confirmation hearings, Elena Kagan has a lot to say about how Supreme Court nominees are examined, and wrote extensively on the subject in 1995.
According to Kagan, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”
She went further. “A nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.”
Kagan should take her own advice and speak on the subject of abortion, as well as the many troubling issues in her record. And Kagan’s advice to the Senate on how to question a Supreme Court nominee is extensive.
Kagan highlighted the confirmation hearings of Ginsburg and Breyer as examples of where nominees failed to answer questions. She referred to their hearings as “official lovefests” because they “confronted no unfair or nasty opposition.” Senate Republicans should keep this in mind if they need the courage to press to get clear answers.
She stated that “both nominees felt free to decline to disclose their views on controversial issues and cases” and that this caused the confirmation hearings to “[lack] seriousness and substance… [becoming a] troubling confirmation mess.”
In her view, the problem was “not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.”
Kagan, who worked on the Judiciary Committee with Sen. Joe Biden during Justice Ginsburg’s confirmation hearing, relates that Justice Ginsburg’s “favored technique took the form of a pincer movement…When asked a specific question on a constitutional issue, Ginsburg replied than an answer might forecast a vote and thus contravene the norm of judicial impartiality…But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling.”
Kagan has also criticized Justice Breyer for his answers during his hearing that were not “forthcoming.”
“His favored approach was the ‘grey area’ test: If a question fell within this area — if it asked him to comment on issues not yet definitively closed — he must, he said, decline to comment.”
“Like Justice Ginsburg, he could provide personal anecdotes — the relevance of which were open to question — [or] state settled law — but not whether he agreed with the settlement. He could explain the importance and difficulty of a legal issue — without suggesting which important and difficult resolution he favored. What he could not do was to respond directly to questions regarding his legal positions.”
Direct questions and direction answers were her preference. Kagan even critiqued the senators’ role in confirmations as a “peculiar ritual dance, in which [the senators] propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner.”
She did not have any patience for weak questions when a person had a limited legal record. Kagan states that “ignorance” of a judicial nominee should increase “the importance of their testimony.”
Kagan, a legal counselor to both President Bill Clinton and President Obama, makes a good point. Because so little is known about Kagan, the senators must thoroughly question her during her confirmation hearing.
It is not enough that a President has nominated someone to the high court, said Kagan. The Senate ought not “to defer to the President,” but should instead adopt the position that “the Senate and the President have independent responsibility to evaluate, by whatever criteria are appropriate, whether a person ought to serve as a Supreme Court justice.”
In fact, “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.”
Kagan clearly understands the importance of confirmation hearings and has articulated appropriate standards for nominees during questioning. Therefore, Kagan’s refusal to answer important questions would contradict the standard she herself advocated.
Senators should expect Elena Kagan to answer questions this week so that the confirmation process will not become what Kagan calls a “process so empty.” Indeed, if Kagan fails to answer questions, Senators should reject her nomination.
She would have expected no less.