Elena Kagan and the 'Vapid and Hollow Charade'

As Garrett Epps points out, Elena Kagan criticized the Senate in 1995 for giving its Supreme Court nominees a pass, failing to interrogate their stances on legal issues. Confirmation proceedings had taken "on an air of vacuity and farce," in her words.

The problem wasn't that senators got too nasty, or that the debate had become brutalized and politicized, Kagan contended, disputing that thesis of Stephen Carter in the book she was reviewing, "The Confirmation Mess." It was that the confirmation process lacked substance--that nominees easily evaded tough questioning about how they approached the law. Ginsburg and Breyer received "lovefests," Kagan wrote; the whole process was a "vapid, hollow charade." You can read the whole book review here: Kagan review of Confirmation Messes.pdf Here's an excerpt:

But that said, the real "confirmation mess" 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.

So, Kagan asked for tough questions. As Epps writes, it looks like she'll now have the opportunity to get them.

Mike Sacks, who blogs about the court at First One @ One First, writes that Kagan can actually achieve something positive by confronting these statements, when they surely come up in her confirmation hearings:

...Kagan's comments on the confirmation process as a "vapid charade" will come back to haunt her.  She may turn this into a good thing if she defends rather than disowns her fifteen-year-old statement.  Certain senators may feign offense and indignation, but if she can frame her condemnation as one against nominees and senators, Democrats and Republicans, then perhaps we may see the first few rays of honest reckoning with our broken process since Clarence Thomas condemned it as a "high tech lynching."  But whereas Thomas's comments came from his particular experience before the Committee, Kagan may speak to the less personal, but no less destructive impact our substance-less confirmation hearings have had on our country's conversation about law and politics.

Perhaps she'll avoid the tough questions. But if she does--if she tries not to get pinned down on how she views certain constitutional issues, that would almost certainly violate the spirit of her 1995 article. Then again, perhaps it's the Senate's responsibility to pin her down, and not hers to cooperate. After all, Kagan didn't disparage Justices Breyer and Ginsburg for being on the receiving end of those "lovefests."