The Not-So-Stealth Nominee?
Jack Balkin asserts:
I have said previously that Elena Kagan is not really a stealth nominee. Despite her lack of a paper trail in legal scholarship, it's not difficult to figure out that she will be a social liberal who will support Roe, the constitutionality of the health care bill, and executive power. We cannot predict where she will end up many years from now, but that is because we don't know what issues the Court will have to address then. In this respect, she is not very different from many other Justices....[It] is fairly easy to see that Kagan is likely to be a liberal Justice. She may not turn out to be as liberal as Thurgood Marshall, for whom she clerked, but it's important to recognize that the President who is nominating her, Barack Obama, is not the most liberal of presidents either. Moreover, he is continuing many of the policies of the Second George W. Bush Administration (2005-2009) on terrorism and related issues. As soon as you recognize this central fact about the Kagan appointment, the mystery is no mystery at all.
He also argues that "the demand for a paper trail is often not so much a demand for clarification of a nominee's views (which can often be guessed by other means), but a demand for evidence that can be used to undermine the nomination or put political pressure on the nominating Administration."