The Kagan questioning was uneventful. She gave a confident and engaging performance--and, of course, one that conveyed no new information. She once regretted that the confirmation process has become so vapid, but when her own came around she wisely conformed.
Mike Kinsley thought it a pity. Emphasising the powers and privileges of the justices, he disapproves of the post-Bork understanding that smart nominees say nothing.
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...she may change her mind?
Kinsley points out that Kagan has already changed her mind on an important legal issue-whether Supreme Court nominees should be forthright at their confirmation hearings. So she has shown how easy it is to state one's current thinking without making a promise. And, Kinsley says,
[If] the answer isn't a promise, then there's nothing wrong with asking the question.
True. But Kagan obviously was not worried about committing herself to rule a certain way in a future case. She was worried about giving Republicans the means to embarrass her and the White House.
This is not a good-faith process. If the senators were conscientiously looking for political moderation (which I think they would be right to require) and a good judicial mind and temperament, it would be different: she would owe both them and the public substantive answers to their questions. They aren't, so she doesn't. In fact, she would be crazy to provide them.