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.

In her 1995 book review, Kagan acknowledged that it would pose a "threat to the integrity of the judiciary" for a nominee "to commit herself to voting a certain way on a case," either directly or by "scantily veiled" implication.

But merely "stating a current view as to a disputed legal question," she stressed, posed no such problem and should be required.

Kagan's distinction would, however, break down in the real world of a Senate confirmation hearing.

Senators will not merely be seeking to satisfy their curiosity when they ask Kagan her current views about whether the Court was wrong to allow corporations to spend on election campaigns; and to uphold the federal law against "partial-birth" abortion; and to uphold racial preferences in law school admissions; and to strike down the death penalty for rapists of children; and whether the Court should strike down the new health care law, and void various gun control laws, and require states to bless same-sex marriage, and strip "under God" from the Pledge of Allegiance, and order the release of dangerous but unprosecutable Guantanamo detainees, and more.

Any nominee who fully disclosed her views - no matter they might be - would almost certainly be defeated. Every candid answer would infuriate some of the swarm of interest groups that focus on every imaginable issue. Dozens of candid answers put together would create a broad and insuperable anti-Kagan coalition including many Democratic senators and all Republicans.

More to the point here, such questions inevitably degenerate into demands for commitments: Are you completely confident of your current view on that partial-birth abortion law? How sure are you that you will never, ever, change your mind? Can we count on you not to disappoint the millions of women who are watching you (and me!!!!!) today? And so on.

There is no clear line that a nominee can draw between stating her current view and making a scantily veiled commitment. And the cleanest way to avoid endless efforts by senators to spin musings into campaign promises is not to start musing.

Advocates of the tell-all approach also overlook the likelihood that it would lead White House officials to push prospective nominees implicitly to pledge their votes on all big issues in secret pre-nomination interviews.

Presidents and their aides have traditionally avoided asking issue-specific questions both because it would be sleazy and because senators routinely require full disclosure of any such discussions and would rightly denounce them.

But if nominees cannot get past the Senate without disclosing their views in confirmation testimony, presidents will be sorely temped to seek secret previews, and to choose nominees corrupt enough to tell them what they want to hear.

Such a nominee's best hope of being confirmed would then be to tell a majority of the senators what they want to hear, in a collection of quasi-commitments contradicting some of those made to the president.

Better to buy a pig in a poke than start down this road.

Why do we face such bleak alternatives? Because the Constitution's vision of a life-tenured judiciary independent of politics rested on the premise that by and large the justices would not be making national policy. And that premise has been washed away by the vast powers that justices of all ideological stripes have arrogated to themselves.