JONATHAN CHAIT JUNE 29, 2010
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I never saw this coming:
At the opening of questioning in her Supreme Court confirmation hearing on Tuesday, Solicitor General Elena Kagan quickly backpedaled from her past call for nominees to speak more openly and in specific terms about their constitutional views.
Under questioning by the chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy, Democrat of Vermont, Ms. Kagan said she thought it would be inappropriate for her to talk about how she might rule on pending cases or cases “that might come before the court in the future” — or to answer questions that were “veiled” efforts to get at such issues.
Moreover, she said, she also now believed that “it wouldn’t be appropriate for me to talk about past cases” by essentially grading Supreme Court precedents, because those issues, too, might someday come again before the court.
In a 1995 book review, Ms. Kagan wrote that recent Supreme Court confirmation hearings had taken on “an air of vacuity and farce” because nominees would not engage in a meaningful discussion of legal issues, declining to answer any question that might “have some bearing on a case that might some day come before the Court.” She called on senators and future nominees to engage in a much more open and detailed discussion of legal issues.
It's almost enough to make me think that public figures tailor their views on procedural questions to suit their position of the moment. I just hope that, if the Republicans pick up a few Senate seats and gain the ability to hold 40 votes against judicial nominees, they don't rethink their principled objections to judicial filibusters. That would really make turn me into a cynic.
6 comments
Captain Renault: I'm shocked, shocked to find that gambling is going on in here! [a croupier hands Renault a pile of money] Croupier: Your winnings, sir. Captain Renault: [sotto voce] Oh, thank you very much. [aloud] Everybody out at once!
- zardoz67
June 29, 2010 at 4:23pm
- I always assumed it was the art of politics to tailor positions, intentions as well as views. Are we cynical because Lincoln's position evolved on emancipation or FDR's lack of candor about war prior to 1940? There are different reasons people tailor positions on procedure as well as policy. It might have been smarter for Kagen to back away from the '94 writing before today. But conviction or certitude can be more cynical if the willingness to improve or evolve is rejected because it has negative personal consequences. Conservative are stuck with wrong ideas that are often only held to please their constituency, but damn if they aren't proud of not tailoring their positions...
- michaelg
June 29, 2010 at 4:37pm
So why do we bother with testimony from the nominee at all? This is nothing new - since at least the Ginsburg hearings, nominees have used the dual dodges that in effect claim an ethical bar against answering any substantive questions about any point of constitutional law. So. Why not confine the hearings to an assessment of the candidate's fitness via the documentary record and character witnesses? Tell the nominee to take a hike, and if she feels the need to rebut anything said about her by any witness, she's free to come testify provided she waives the refusal to speak about actual matters of constitutional law. Thus future confirmations can be a cross between the ABA's "fitness" assessment and an all-Anita, no-Clarence hearing.
- rhubarbs
June 29, 2010 at 5:07pm
As a liberal (judicially and otherwise) I have to agree, except that this isn't a procedural question on any level. I think Kagan is expressing a substantive view of separation of powers, namely that it is inappropriate for Senators to inquire (and nominees to answer) about judicial philosophy.
- boaz_s
June 29, 2010 at 5:11pm
You know, I one of those venal, money-grubbing business-people, with no public-service bones in my body. By legend, we all lie to sell. But by a country mile, I've got Kagan beat on integrity. I at least stand behind my products after I sell them.
- IowaBeauty
June 29, 2010 at 5:20pm
Let's say Kagan went ahead and said that the Citizen's United Decision is trash, and why. What would happen that everyone is afraid of? Would she really not get confirmed?
- vips73
June 29, 2010 at 10:08pm