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Elena Kagan on the Confirmation Process

by Professor Will Huhn on April 14, 2010

in Constitutional Law,SCOTUS,Wilson Huhn

     Elena Kagan, who was Dean of Harvard Law School and who is currently serving as Soliciter General of the United States, is frequently mentioned as one of the leading candidates to be nominated to succeed John Paul Stevens on the Supreme Court.  Her nomination would guarantee us a summer filled with either a vigorous, wide-ranging, and stimulating discussion of constitutional law, or with plenty of backtracking.  In 1995 Kagan wrote an essay critiquing Stephen Carter's book Confirmation Messes, in which she takes the position that supreme court nominees should answer substantive questions about how they would approach constitutional interpretation and what their views are on specific issues.  Would she be willing to do this when she is on the hot seat?

     In reaction to the bitter confirmation hearing and failed candidacy of Robert Bork, Stephen Carter argued in Confirmation Messes that the Senate Judiciary Committee should refrain from any inquiry into a judge's substantive views, but should merely evaluate the candidate's qualifications and fitness for the position.  Kagan's review of that book entitled Confirmation Messes, Old and New commences with these words:

What confirmation mess?

     Kagan contends that the problem with Bork's confirmation was not that the Senate inquired into – and Bork eagerly shared – his views on constitutional law, but rather that Bork's opponents distorted his views.  The real "confirmation mess" in Kagan's opinion is rather what has followed – the reluctance of the Senate to ask, and the refusal of the nominee to answer, questions about constitutional law.  Kagan says:

[T]he real âconfirmation messâ is the gap that has opened between the Bork hearings and all others (not only for Justices Ginsburg and Breyer, but also, and perhaps especially, for Justices Kennedy, Souter, and Thomas). It is the degree to which the Senate has strayed from the Bork model. The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have 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. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy–muted, polite, and restrained–but all that good order comes at great cost.

     Kagan states:

[T]he Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues ….

     Kagan says:

The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind Carter would forbid: discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues.

     Kagan explains what she means by "judicial philosophy:"

By âjudicial philosophyâ … I mean such things as the judge's 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.

     However, Kagan would not only expect the confirmation process to encourage nominees to discuss their general theory of the judicial process but also

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.

     Kagan concludes by stating that the solution is not less, but more disclosure of a candidate's views:

In some sense, Carter is right that we will clean up the mess only when we change âour attitudes toward the Court as an institutionâ–when we change the way we âview the Courtâ (p 188). But as he misdescribes the mess, so too does Carter misapprehend the needed attitudinal adjustment. We should not persuade ourselves, as Carter urges, to view the Court as a âmundane and lawyerlyâ institution and to view the position of Justice as âsimply a jobâ (pp 205-06). We must instead remind ourselves to view the Court as the profoundly important governmental institution that, for good or for ill, it has become and, correlatively, to view the position of Justice as both a seat of power and a public trust. It is from this realistic, rather than Carter's nostalgic, vision of the Court that sensible reform of the confirmation process one day will come. And such reform, far from blurring a nominee's judicial philosophy and views, will bring them into greater focus.

     Ironically, one of the advantages of a Kagan candidacy is that there is a sparse "paper trail" regarding her opinions about constitutional law.  She has authored relatively few law review articles and rarely discusses her positions in public.  Supreme Court scholar Stephen Eisgruber has said of Kagan,

âIt helps candidates if they donât have an especially long or controversial paper trail. So I think thatâs an advantage for Solicitor General Kagan.â

Lexington, who blogs at The Economist, refers to Kagan as a "stealth candidate."  If Kagan is the nominee – and if she stands by what she said fifteen years ago – she will be anything but a "stealth candidate."  Her confirmation hearing could instead become the forum for a summer-long debate on constitutional law.


CBH April 15, 2010 at 7:48 pm

Kagan would push the court dramatically to the right. How else can you explain Bill Kristol praising her? Unlike Stevens, who stood up to the Bush administration's executive power abuses, Kagan is more deferential to executive power. If you want the court to maintain its current balance, Kagan is not the nominee you want.

If you are interested in a more substantive analysis on the above, see Glenn Greenwald's case against Kagan.

Quidpro April 16, 2010 at 8:17 pm

The comments of CBH, as well as the Professor's post, point to the problematic nature of judicial confirmation in our post-Bork (and more fundamentally, post-Roe) era. As Toqueville predicted, in modern America all political issues eventually become legal (judicial) issues. Thus, the appointment of a new Supreme Court Justice has been reduced to a political appointment. Why should we be surprised that partisan political interest groups face off along the predictable political fault lines that divide Left from Right?

Kagan's comments recognize this reality. The judiciary has willingly surrendered to the siren song of political advocacy. Some may welcome this development. Others see it as a harbinger of Constitutional decline.

larry d. April 18, 2010 at 7:10 am

Sounds like her confirmation could possibly become a summer-long debate on identity politics and closeted lesbianism instead. That's too bad.

I wouldn't be surprised if she doesn't get the nomination. Gay activism just doesn't appeal to voters except the white progressives who'll get out and vote Democrat anyway.

CBH April 19, 2010 at 10:17 am

Thanks for the response quidpro. While I'm ambivalent about the post-Stevens political nomination process, my point wasn't political. If I was arguing that Obama should pick X because he/she is liberal or Obama should pick Y because he is more conservative, then your point would be valid. However, my argument was that Obama should not pick Kagan because she would upset the current balance of the court. My argument, in effect, is that Obama should maintain the court's balance, which transcends political/ideological beliefs. Although, if I had to attach a political/ideological label to wanting to keep the court's current balance, I would have to admit that sounds alot like "small-c," nonmovement conservatism.

Quidpro April 20, 2010 at 9:17 am


To advocate that Obama "maintain the court's balance" is to advocate a political position. To avoid the extremes of the political spectrum is not to "transcend political/ideological beliefs". The politics of the status quo is still politics.

Thus you prove my point. The Court has become so politicized that some seek "balance" to compromise competing political differences. And is not compromise the essence of politics? All appointments to the Supreme Court have become political appointments.

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