Early reaction to President Obama's nomination of Kagan to the Court has centered in large part on what's called her limited paper trail, meaning that Senators will have fewer possibly controversial writings to quiz her about at hearings later this summer. But on one subject, Kagan has taken a very firm stand: Senators should press nominees to discuss what they will do on the Court, and should not be willing to accept excuses about "judicial independence" when the nominees seek to evade the questions.
The book review, in the University of Chicago Law Review, may now play a part in Kagan's own hearings--and may serve as an illustration of the ancient warning to be careful what one wishes for. Republican Senators would be dimwits indeed if they did not quote this essay and demand that the nominee live up to it.
Kagan moved to the University of Chicago in 1995 after a stint as an aide to Sen. Joe Biden, who chaired the Bork hearings. She pointed out that subsequent hearings had taken "on an air of vacuity and farce," centering either around bland platitudes from the nominee or on unpleasant personal allegations, such as the Anita Hill-Clarence Thomas hearings. The hearings on the nomination of Anthony Kennedy and David Souter, she wrote, centered around "nontestimony." But she was equally acid about the hearings for two Democratic nominees, Ruth Bader Ginsburg and Stephen Breyer. Ginsburg's approach she described as a "pincer movement," in which she would refuse to comment on specific fact patterns because they might come before the Court, and then refuse to discuss general constitutional issues because "a judge could deal in specifics only." Breyer "was smoother than Justice Ginsburg, but ultimately no more forthcoming."
We can only speculate on what she would have thought of the testimony of nominee Sonia Sotomayor, who did her own pincer movement by answering every question in terms of the need to respect and build on precedent.
In 1995, Kagan argued that an appropriate confirmation process "must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court's decisions. If that is too results oriented ... so be it."
My point is not to criticize Kagan's essay; it is admirably direct. In a world in which Senators gathered to deliberate and a dialogue over substance was seen as a way to generating knowledge rather than talking points, it would be spot on. But do we live in such a world? Indeed not, and Elena Kagan knows that as well as you or I.
After her stint at the University of Chicago, Kagan served in the Clinton White House, first in the counsel's office and then as deputy domestic policy adviser. In that capacity, she saw close-up the effects of a toxic partisan atmosphere, including some of the worst behavior Congress has exhibited in our time. It would be odd if she had not, to some degree, rethought her view of the Senate's proper role. If so, who can honestly say she's wrong? Today's Senate really has generated a "confirmation mess" -- witness the way that Republicans turned the innocuous words "empathy" and "wise Latina" into allegations of lawlessness and racism. There is a serious case to be made that a body that dysfunctional deserves only a few platitudes, not "an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct."
But the latter is what Kagan called for in 1995, and she and the White House may be forced to adapt their strategy to her words.