Senators will soon be involved in the confirmation hearings for Elena Kagan, President Obama’s nominee to replace Justice John Paul Stevens on the Supreme Court. It’s a lifetime appointment, and big media aren’t giving the nominee much scrutiny. They’re mostly spinning White House talking points in a montage of nearly identical sound bites, which over and over tell us about her ‘great mind’ and acceptability to a broad range of people.
Her confirmation is a certainty. So while the hearing process is still open, here’s some advice to senators who aren’t prepared to rubber stamp the nomination: ask questions. The nominee, herself, once advocated for a thorough examination of judges.
In a 1995 article for the University of Chicago Law Review, Kagan argued for probing, detailed inquiry during Senate confirmation hearings for federal court nominees, writing: “The kind of inquiry that would contribute most to understanding and evaluating a nomination is . . . discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues . . . seeing how theory works in practice by evoking a nominee’s comments on particular issues — involving privacy rights, free speech, race and gender discrimination, and so forth — that the Court regularly faces.” She has written that she found Justice Ginsburg evasive during her own confirmation hearings: “I was frustrated by what I called Justice Ginsburg’s ‘pincer movement’ — the tendency to say that questions were either too specific or too general to be able to answer, with little ground in between.”
So now what? Kagan is in Ginsburg’s place, being examined for her merit as a potential lifetime Supreme Court justice.
Would she answer such questions forthrightly? There are worrisome indicators that she would not.
She is on record for believing in the force of settled law, when it comes to a woman’s right to abortion. But then, she is very much against settled law on same-sex marriage and even the military’s policy with regard to homosexuality.
Kagan called the “Don’t Ask, Don’t Tell” policy “repugnant” and “immoral,” but repugnant to what? To her personal political sensibilities, or to the Constitution? Was that unanimous Supreme Court correct to rule against Kagan, or was it incorrect? She has referred to “Don’t Ask, Don’t Tell” as representing a “military policy,” but it was established through an act of Congress, and is therefore the American people’s policy. Should Joe Biden be banned from the Harvard campus for having voted for it? And what precisely is the constitutional weight of Elena Kagan’s repugnance or her sense of immorality?
Good questions. They should be asked….and answered.