In 1995 Elena Kagan lamented that the U.S. Supreme Court confirmation process had become a “vapid and hollow charade” as she urged senators to ferret out the nominees’ views on the country’s most highly charged issues.
Nominees “usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion,” she wrote in a law review article, published two years after she advised then-Senator Joe Biden on the high court nomination of Ruth Bader Ginsburg.
Now the Supreme Court nominee herself, Kagan will have a chance to live up to those words -- or at least add substance to a confirmation process that Biden once called a “kabuki dance,” devoid of any concrete discussion about a nominee’s views. Her confirmation hearing begins June 28.
Kagan has promised to be more forthcoming than previous nominees, according to Senator Arlen Specter, a Pennsylvania Democrat who met with her last month. Specter said Kagan went so far as to criticize a previous nominee as being “not appropriate in responses.”
Supreme Court nominees often have powerful incentives not to expound on their views, and Kagan, 50, is no exception. With Democrats in control of the Senate -- and with no major controversy attached to her name -- a blunder at the hearings might be the only thing that could derail her confirmation and a lifetime appointment to the nation’s highest court.
“This is one of those situations where you want to be as expansive as you need to be to get confirmed and not a bit more expansive,” said Jack Quinn, who as White House counsel under President Bill Clinton was Kagan’s boss.
In theory, a Supreme Court confirmation hearing offers an opportunity for a far-reaching discussion about the Constitution, the scope of governmental power and the role a justice should play in shaping American law.
In reality, no hearing has approached that standard since 1987, when Senate Democrats and nominee Robert Bork dueled over the scope of the constitutional protections for individual rights. The Senate rejected Bork 58-42.
In the eight confirmation hearings since then, nominees have studiously avoided offering substantive opinions beyond those already in the public domain.
Ginsburg set the standard in 1993 when she told senators she would offer “no hints, no forecasts, no previews” of how she would rule in a future Supreme Court case. President George W. Bush’s two successful nominees -- Chief Justice John Roberts and Justice Samuel Alito -- cited the Ginsburg approach to justify their own measured responses.
Kagan slammed the post-Bork hearings in her 1995 article. They “presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,” she wrote.
The 1995 article may make it harder for Kagan to duck questions, said Walter Dellinger, a Washington lawyer who worked with Kagan when he was solicitor general under Clinton. Republican Senator Orrin Hatch of Utah cited the piece during her confirmation hearing last year to become U.S. solicitor general.
“I’m sure there will be questions directed to her that might not have been directed so pointedly at other nominees,” said Caroline Frederickson, executive director of the American Constitution Society, a network of liberal lawyers and law students.
No Judicial Background
Kagan’s limited track record will also give senators grounds to demand greater candor, said Rachel Brand, a Washington lawyer who as a member of the Bush administration helped shepherd the Roberts and Alito nominations through the Senate. Kagan will be the first Supreme Court nominee since 1971 to appear before the committee without having previously been a judge.
“Senators don’t have as much to go on, so they may expect her to provide more of her views in the hearing,” Brand said.
The man who nominated Kagan, President Barack Obama, has hinted that he would welcome a more robust debate about the direction the court has taken under Roberts. Obama has accused the Roberts court of favoring corporate interests over those of “ordinary citizens.”
The nomination hearing could feed that story line. Senators who have met with Kagan say she has criticized the court’s Jan. 21 decision voiding decades-old limits on corporate campaign spending. As the Obama administration’s top advocate in Supreme Court cases, Kagan argued unsuccessfully in favor of the restrictions.
“The hearing is the venue in which senators and all Americans will have the opportunity to learn about Elena Kagan’s view of the law and her keen understanding of how it impacts the daily lives of Americans,” said Ben LaBolt, a White House spokesman.
At least one Republican on the Judiciary Committee, Senator Lindsey Graham of South Carolina, questions whether Kagan will be more forthcoming than previous nominees. Asked about her 1995 article, he laughed.
“She may have rethought that,” Graham said.