Kagan Under Obligation To Open Up
Fifteen years ago, Elena Kagan penned a passionate and eloquent critique of the modern Supreme Court confirmation process, calling it a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."
The White House is indicating that, now that she is a Supreme Court nominee herself, Kagan doesn't want to live up to her own standards.
But as she travels to Capitol Hill Wednesday to begin her courtship of senators, there's plenty of reason why those senators should ask her to heed her younger self.
Back in 1995, hot off her stint as a Senate Judiciary Committee staffer during the particularly substance-free confirmation hearing of Justice Ruth Bader Ginsburg, Kagan wrote that nominees should be prepared to openly discuss their "understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory."
And then, because those "statements of judicial philosophy may be so abstract as to leave uncertain, especially to the public, much about their real-world consequences," she wrote, senators should insist on "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."
Many senators these days see confirmation hearings as an opportunity for speechifying, rather than actual inquiry. But those that do choose to ask probing questions should insist that Kagan be forthcoming in her replies -- not just because acting otherwise would be incredibly hypocritical on her part, but because the Kagan of 1995 was dead right.
Indeed, by being upfront about her views, Kagan would establish a hugely important precedent, even before joining the court.
The current say-nothing approach to confirmation hearings dates back to 1987, when Reagan nominee Robert Bork engaged senators in a robust dialogue about judicial philosophy, exposing views on individual rights that were far outside the mainstream. The Senate rejected his nomination.
The approach was then formalized in 1993, when Ginsburg, a Clinton appointee, invoked what became known as the "Ginsburg Rule" to decline pretty much any question she wanted on the grounds that the issue might come before her on the Court, so an answer could jeopardize her judicial impartiality.
At least one senator is hoping that Kagan is true to her old words. Sen. Herb Kohl (D-Wis.) said in a statement: "In light of her critique of Supreme Court confirmation hearings... we certainly do hope that she will provide us with substantive and meaningful insight into the kind of Supreme Court Justice she would be."
"I'd like to see her answer questions more forthrightly than other nominees have," said American University Law Professor Stephen Wermiel. "I think that she has set a high standard which it is certainly fair for senators to try to hold her to."
Wermiel told HuffPost that there's plenty Kagan could share about her judicial philosophy and her views about the proper role of the court without taking positions on specific cases.
"I don't think she ought to answer the question 'Do you think that requiring ultrasounds prior to all abortions violates a woman's right to abortion?' That question, I think she ought to say: 'I can't answer.' But I think you could ask her to give some insight into what kinds of abortion restrictions generally may advance the state's interests, and what kinds of restrictions may interfere with a woman's rights."
Wermiel said Kagan could set a healthy new precedent if she shows "that you can share some insight about judicial philosophy and approach and views about the proper role of the court, without pinning yourself down on how you feel on specific cases."
Kagan herself has publicly backed away from her earlier writing. In her February 2009 confirmation hearing to become solicitor general, Sen. Orrin Hatch (R-Utah) asked her how she squared her belief that judicial nominees should share their views on constitutional issues with the principle that judges should be impartial.
"I'm not sure that, sitting here today, I would agree with that statement," she said.
"I wrote that when I was in a position of sitting where the staff is now sitting, and feeling a little bit frustrated that -- that I really wasn't understanding completely what the judicial nominee in front of me meant, and what -- what -- what she thought," Kagan said.
"This has to be a balance," she said, from the other side of the witness table. "The Senate has to get the information that it needs, but as well, the nominee for any particular position, whether it's judicial or otherwise, has to be protective of -- of certain kinds of interests, and you named the countervailing ones."
Asked by HuffPost's Sam Stein on Monday whether the White House would like Kagan to be more forthcoming in the confirmation process, Press Secretary Robert Gibbs referenced that 2009 exchange.
"I would point you to the answer that's -- the answers that she gave last year during her own confirmation process to be Solicitor General and -- in which she understood differently, from the perspective of a staffer, the perspective that a nominee can and must take during the confirmation process," Gibbs said.
And Jon Ward writes for the Daily Caller that Ron Klain, chief counsel to the vice president, indicated on Tuesday that Kagan will not be following her own advice.
"You will see before the committee that she walks that line in a very appropriate way," Klain said. "It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn't go in answering about specific legal questions."
But Kagan's new-found reluctance only makes her old argument that much stronger; it simply puts the burden on the Senate to assert itself.
As she wrote 15 years ago about Ginsburg and Justice Stephen Breyer: "I suspect that both appreciated that, for them (as for most), the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress?"
Her critique of Ginsburg's approach was particularly incisive -- although what lesson today's Kagan is taking from it is not at all clear:
Justice Ginsburg's favored technique took the form of a pincer movement. When asked a specific question on a constitutional issue, Ginsburg replied... that an answer might forecast a vote and thus contravene the norm of judicial impartiality. Said Ginsburg: "I think when you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because.. . that scenario might come before me." But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. Again said Ginsburg: "I prefer not to .. .talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case."
Some room may have remained in theory between these two responses; perhaps a senator could learn something about Justice Ginsburg's legal views if he pitched his question at precisely the right level of generality. But in practice, the potential gap closed to a sliver given Ginsburg's understanding of what counted as "too specific" (roughly, anything that might have some bearing on a case that might some day come before the Court) and what counted as "too general" (roughly, anything else worthy of mention).
Thomas E. Mann, a Brookings Institution scholar and co-author of "The Broken Branch: How Congress Is Failing America and How to Get It Back on Track", said there's no upside for Kagan in actually answering questions. It would only complicate things for her when she's "almost a lock on confirmation right now."
Virginia Sloan, president of the Constitution Project, said it would be "totally appropriate" for senators "to be exploring a person's judicial philosophy and temperament and views in general."
But realistically, she said, "I think that anything that anybody says can be used against him or her or politicized or misinterpreted and it's just become too dangerous to do it."
All this frustrates George Washington University Law Professor Jonathan Turley. The Ginsburg Rule "has turned the confirmation hearings into a pathetic exercise," he said. "What's infuriating for lawyers is that the discussion remains on a Romper Room level. It is basically a series of platitudes that is disguised as public commentary.
"It's like picking a doctor based on his personal opposition to premature death," he told HuffPost.
As Kagan decides how to answer questions -- and as senators decide how hard to press her -- there is more than just possible hypocrisy or a missed opportunity at stake.
Continued adherence to the Ginsburg Rule could let another Bork on the court -- in fact, it has arguably done so already, in the form of the outwardly more reasonable but equally radical John Roberts and Samuel Alito.
The critically important role senators have in a Supreme Court confirmation is to reject any presidential nominee whose philosophy is genuinely radical -- whose thinking about liberty and tyranny, for instance, is not simply a reflection of political differences, but is so extreme that it is outside the American legal tradition.
The fact is that while Democratic presidents have lately tended to nominate only somewhat liberal or even centrist justices, modern Republican presidents have been so influenced by far-right legal cabals that their nominees have increasingly promoted severe judicial philosophies that, if publicly expressed, would actually be untenable to most Americans. Their views on severely limited individual rights, expansive corporate rights, and nearly unlimited executive power beget a vision of America that is unrecognizable and distasteful to all but the most extreme conservatives.
There are already four such zealots on the Court. Without a new precedent that allows senators to demand answers -- and empowers them to balk at confirming any nominees who refuse to openly discuss their judicial philosophy -- the Court could too easily shift roles from being the last bulwark against tyranny to being its enabler.