Supreme Court confirmations, as Elena Kagan saw them
In 1995, a brash assistant law professor at the University of Chicago decided to blow the whistle on a broken Supreme Court confirmation process.
She complained that rather than triggering a public discussion of the cases and controversies facing the high court, Senate confirmation hearings had become a 鈥渧apid and hollow charade,鈥� little more than 鈥渙fficial lovefests.鈥�
What the system most needed were tough, aggressive questions from the senators, and candid, revealing responses from nominees.
IN PICTURES: Justices with no prior judicial experience
What makes these pronouncements particularly relevant today is that they were written by Elena Kagan, who on Monday became President Obama鈥檚 nominee to the US Supreme Court.
In roughly two months, it will be Ms. Kagan herself sitting in the hot seat before the Senate Judiciary Committee. Her words, preserved in a book review in the spring 1995 issue of the University of Chicago Law Review, may come back to haunt her.
鈥淪enators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues,鈥� Kagan wrote.
鈥淭he Senate鈥檚 consideration of a nominee, and particularly the Senate鈥檚 confirmation hearings, ought to focus on substantive issues,鈥� she wrote. 鈥淭he 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.鈥�
The more revealing the responses, the better, she said. Nominees should comment on judicial methodology, prior case law, hypothetical cases, and even volunteer her thoughts on general issues like affirmative action or abortion, Kagan declared.
鈥淭he critical inquiry 鈥� concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution,鈥� Kagan wrote.
The only restraint, she said, was that nominees must take care not to leave the impression that they were pledging to vote a certain way in future cases.
This view of the Supreme Court confirmation process stands in sharp contrast to the long-embraced conventional wisdom that high court nominees must avoid substantive discussions with senators to prevent being too closely linked to any potential outcome in a future court decision.
Kagan and her White House handlers are well aware of her 1995 book review. She was asked about it during her March 2009 confirmation hearing for her current job as solicitor general. At that time, Kagan backed away from the assertions and aggressive strategy, a move that suggests she is likely to adopt a similarly low-profile approach during her Supreme Court confirmation hearings.
Meanwhile, supporters and potential opponents are beginning to jockey for position as the confirmation process focuses exclusively on Kagan.
Although she has held two of the highest-profile jobs in American law 鈥� US solicitor general and dean of Harvard Law School 鈥� she has never worked as a judge and has only limited courtroom experience as a lawyer. Most of her career she鈥檚 worked as a law professor or dean. She鈥檚 also served as a lawyer in the White House, as a legal adviser in the Senate, and as a judicial law clerk.
Democrats downplayed her lack of judicial experience. 鈥淓lena Kagan鈥檚 nomination will bring a diversity of experience missing since Justice [Sandra Day] O鈥機onnor retired in 2006,鈥� said Judiciary Committee Chairman Patrick Leahy. 鈥淚 have urged President Obama to look outside the judicial monastery to identify qualified nominees鈥�. Elena Kagan is just such a nominee.鈥�
Senate Republican leader Mitch McConnell questioned whether Kagan is qualified for the high court job. 鈥淥ne does not need to have prior experience as a judge before being appointed to the country鈥檚 highest court,鈥� he said. 鈥淏ut it strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience. Ms. Kagan has neither.鈥�
Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, also questioned Kagan鈥檚 experience. 鈥淢s. Kagan鈥檚 lack of judicial experience and short time as solicitor general, arguing just six cases before the court, is troubling,鈥� he said.
鈥淭he public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to impartial application of the law and the Constitution,鈥� Senator Sessions said. 鈥淲ith no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics.鈥�
Sen. Bernie Sanders of Vermont, an Independent, said Monday he is more concerned about growing corporate power in the US than Kagan鈥檚 lack of judicial experience.
鈥淚 understand there has been concern that she never has been a judge,鈥� he said. 鈥淚 can only say that if the Citizens United [Supreme Court] ruling, which allowed corporate cash to dominate American elections, is what results from a court made up of people who wore robes most of their lives, then Elena Kagan鈥檚 experience outside courtrooms should not be held against her.鈥�
IN PICTURES: Justices with no prior judicial experience
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