Kagan’s Reversal

She was right the first time, and wrong now

This article is from the archive of our partner .

By changing her mind about practically the only legal subject on which she is known to have views, Elena Kagan has provided strong evidence that she was right the first time, and is wrong now. The question is how detailed the questioning of a Supreme Court nominee should be. Back in 1995, Kagan wrote in a book review that Supreme Court nomination hearings had become a farce because the candidates wouldn’t express any strong opinions that might hint at how they might rule once they were on the bench. Now she says that, after her own nomination, she was persuaded by Senator Orrin Hatch (and this sentence is already pretty hilarious, no matter where it might be going, isn’t it?)…persuaded, as I say, by Senator Hatch that she should reconsider, which she did. And whaddya know, she concluded that nominees should not discuss anything at a confirmation hearing that might indicate how they would vote in some future case. That covers just about everything anyone might wish to know before giving her a lifetime job and membership in the nine-member oligopoly that interprets the Constitution. Republicans gripe about this, but not too loudly since they trained their judicial nominees to do the same thing back in the day. (Here is my take on this subject, from back when the shoe was on the other foot. Here and here are Stuart Taylor defending current arrangements.)

Defenders of this custom predict that any comment that even hints at a specific conclusion on an issue that may come before the Court will inevitably be interpreted as a promise, with hell to pay if it is broken. Dissenters (including me) say, Why should this be? Why can’t it be taken for what it is: a statement of the nominee’s current thinking, with the possibility that—after listening to the arguments and reading the briefs (or just visiting Orrin Hatch)—she may change her mind?

Kagan, who now shares the high-minded view that nominees should be seen but not heard, has weakened her case by demonstrating that it is, in fact, possible to change your mind on an important legal issue. (Under some circumstances, it is not merely possible but positively recommended.) If so, then a nominee’s expression of his or her current thinking, or even a prediction of how he or she might vote in some future case, need not be taken as a promise. And if the answer isn’t a promise, then there’s nothing wrong with asking the question.

This article is from the archive of our partner The Wire.