Why Kagan Should Stonewall the Senate

One Elena Kagan assertion that seems supported by a broad bipartisan consensus is that senators should insist that nominees disclose their "views on particular constitutional issues . . . involving privacy rights, free speech, race and gender discrimination, and so forth." (Oddly, her bill of particulars omitted abortion.)

Kagan complained, in a 1995 book review in the University of Chicago Law Review, that all nominees since the defeat of Robert Bork in 1987 had "stonewalled" the Senate Judiciary Committee by refusing to discuss specific issues and sticking to "platitudes." This, she famously wrote, has made confirmation hearings "a vapid and hollow charade." All quite true.

People ranging from Republican senators to my old friends Linda Greenhouse, writing in The New York Times, and Mike Kinsley, writing and on video in The Atlantic Wire, emphatically endorse Kagan's 1995 case for telling all and hope that she won't recant now.

But Kagan will recant. And she should. Yes, at first blush there seems to be an overwhelming case for demanding candor from a nominee who seeks a lifetime appointment to an office with more power than any but the presidency, and who will never have to answer to voters.

The strategic reason for stonewalling is to avoid being nibbled to death by liberal and conservative interest groups. The public-policy reason is the need to avoid forcing nominees to make the moral equivalent of campaign promises that would compromise both their own integrity and the independence of the judiciary.

In his Atlantic Wire video, Kinsley calls it "ridiculous" for nominees to refuse to answer detailed questions. He skewers the argument that such testimony would compromise nominees' impartiality, noting that "we know in great detail what the other eight justices think about issues that have come before the court and no one accuses them of having prejudged."

Kinsley is right about that. It's routine and inevitable for justices to sit in judgment on (for example) a restriction on abortion in State X after having voted to strike down an identical law in State Y. It follows that a nominee has no ethical obligation - as far as impartiality is concerned - to hide her views on that or any other issue.

But Kinsley ignores a far more compelling consideration: the need for prospective members of the independent third branch to avoid making campaign promises to the other branches to get there.

President Lincoln alluded to this when, in discussing a prospective nominee, he said:
"We want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it. Therefore we must take a man whose views are known."

Why so? Because we don't want prospective justices to commit to subordinate their independent judgment to the demands of the elected officials. Such commitments would be corrupt bargains.

Chief Justice John Roberts made a similar point in explaining his own artful dodging of senators' questions in 2005. To do otherwise, he explained, would become a "bargaining process" rife with pressure to "promise to do certain things in exchange for votes."

This helps explain why for most of our nation's history, Supreme Court nominees did not testify at all. Also why the only nominee who has ever detailed his views was Bork, who had little choice but to explain the often-incendiary positions that he had previously published on all of the big issues.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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