Litigation

Revisiting What Kagan Labeled the Confirmation ?Charade?

By Peter Hardin

When Elena Kagan derided the Supreme Court justice confirmation process in 1995 as a “vapid and hollow charade,” she didn’t stop there.

The University of Chicago assistant law professor urged that the process was so important that it should delve  deeper, as Linda Greenhouse summarizes in the New York Times’ Opinionator blog:

“The position of a justice is ‘both a seat of power and a public trust,’ she wrote, adding that justicesâ?? votes often ‘have little to do with technical legal ability and much to do with conceptions of value.’ A confirmation hearing should uncover a nomineeâ??s ‘vision of the court’ in specifics, not generalities. ‘Privacy rights, free speech, race and gender discrimination’ â?? everything should be placed on the table for analysis, Professor Kagan wrote.”

Now that Kagan is President Obama’s second Supreme Court nominee, Greenhouse and others are advocating a confirmation process where Kagan lives up to–and is allowed by White House handlers to live up to–a more open standard.

It is especially important for the Senate to take Kagan’s advice and get her to “open up a little,” given her “lack of a clear record” on certain issues, the New York Times states in an editorial, headlined “Searching for Elena Kagan”:

“President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view.”

A commentary in the Wall Street Journal by Neomi Rao similarly refers to Kagan’s 1995 article, and Kagan’s opinion that the Senate should view confirmation 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.” “Ms. Kagan is right,” Rao concurs.

Any number of news media reports assert Kagan, the U.S. solicitor general, is notably lacking  a public record on some key legal issues. A former Harvard Law School dean, Kagan has not served on the bench.

“Abortion may be a sleeper issue in Supreme Court confirmation process,” is a Washington Post headline; a Greenwire article from the New York Times brands her  views on most issues “a mystery”; and a Bloomberg headline declares, “Kagan’s ‘Thin’ Legal Record Hints She Will Ally With High Court Democrats.”

But in other areas, Kagan has enough of a record that it is chronicled. A Wall Street Journal article reports that she argued on behalf of strong counterterrorism policies. The Atlantic identifies three reasons why why the business community shouldn’t fear a Justice Kagan.

For now, it is uncertain how much Kagan will open up in questioning before the Senate Judiciary Committee. According to a USA Today article, the White House addressed the confirmation process this way:

“White House officials said no judicial nominee should discuss how she might rule on specific cases that might come before her. Ron Klain, who was involved in the selection process as chief of staff to Vice President Biden, said Kagan would be very forthcoming before the Senate Judiciary Committee.

“‘There will be a very complete picture,’ Klain said.”

To learn more about the nomination process, check out Justice at Stake’s “Replacing Justice Stevens” page.

Full post as published by The Gavel on May 11, 2010 (boomark / email).