Legal Commentary

Further Reactions to the Kagan Hearings

By Jonathan H. Adler

The Washington Post has posted my comments on today?s hearings in their online ?Topic A? feature.  Comments from others are sure to follow.  Among other things, I note that Elena Kagan has effectively avoided giving substantive answers that could disclose her views on any legal issue, old or new.  She wouldn?t name any justice she considered to be an ?activist? and wouldn?t say whether she agreed with the Declaration of Independence.  She also refused to indulge Democratic Senators? invitations to criticize the Roberts Court, often correcting simplistic caricatures of recent opinions and doctrines. (Jan Crawford noted an amusing exchange here.)  I?ve discussed the hearings a bit more on NRO?s Bench Memos (see, e.g.,  here and here).

Among the more interesting parts of today?s hearing was Senator Arlen Specter?s frustration with Kagan?s evasiveness.  While Kagan seems to have learned the wisdom of the conventional approach to confirmation hearings, Senator Specter clearly pines for a nominee that would follow the advice of Kagan?s 1995 University of Chicago Law Review article.  As noted by BLT, Specter was sufficiently unhappy to raise the prospect of voting against his own (newly adopted) party?s nominee.

I doubt Specter will end up voting against confirmation, and I don?t think it will matter if he does.  There won?t be 40 votes against cloture on her nomination (and that?s a good thing), and there surely won?t be a majority opposing her confirmation.  Elena Kagan is one step closer to being the nation?s next associate justice.

Full post as published by The Volokh Conspiracy on June 30, 2010 (boomark / email).