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.
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.
...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.
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