Law Review Article Could Spell Trouble For Kagan At Confirmation Hearing

Senators who will be trying to pry Kagan's closely held views out of her at the upcoming confirmation hearing will almost certainly confront Kagan with her own words from long ago

Tony Mauro
The National Law Journal
May 12, 2010

Several news profiles of Supreme Court nominee Elena Kagan in recent days have intimated that she has had her eye on a Supreme Court seat almost since high school, and that her longstanding reticence about taking strong stands on issues may have been calculated to help smooth her path.

But that degree of foresight can't have been at work when she wrote http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/KaganSG-Question13A-Part10.pdf a book review that was published in a 1995 edition of the University of Chicago Law Review. In the process of commenting on Stephen Carter's book on the sorry state of Supreme Court confirmation hearings, Kagan offered an analysis that lights up like neon now that she herself is a nominee.

At the time she wrote the article, Kagan was a visiting professor at the University of Chicago Law School, following a stint as special counsel for the Senate Judiciary Committee during Ruth Bader Ginsburg's confirmation hearing.

The process has taken on "an air of vacuity and farce," she wrote, in part because senators have gotten away from "the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments." Another phrase she used to describe modern-day confirmation hearings: "vapid and hollow charade."

There's more. Senators at confirmation hearings, she said, engage in a "peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond to in like manner." She praised the stormy 1987 hearing on Robert Bork's nomination -- which resulted in his defeat -- as the model for the kind of meaty, substantive hearing the Senate should conduct.

Along the way, by comparison, Kagan also called the confirmation hearing of Clarence Thomas a "national laughingstock," and said the hearings for Ruth Bader Ginsburg and Stephen Breyer were "lovefests" in which they "stonewalled the Judiciary Committee to great effect." Ginsburg, in particular engaged in a "pincer movement" by refusing to answer questions that she viewed either as too specific or too generally.

Fifteen years later, unsurprisingly, the article has come back to haunt Kagan more than anything else she has written -- at least in terms of its impact on the confirmation hearing she will soon face. As senators try to pry her closely held views out of her, they will almost certainly confront her with her own words, Tim Russert-style, and ask her how she can say so little, when she said then that nominees should say a lot more?

It's already begun among commentators. "I hope very much that the nominee means now what she wrote then," http://opinionator.blogs.nytimes.com/2010/05/10/just-answer-the-question/ wrote Linda Greenhouse in The New York Times this week.

"We have waited a long time for a nominee willing to give answers." In The Wall Street Journal, George Mason University professor of law Neomi Rao http://online.wsj.com/article/SB10001424052748703880304575236120480093754.html said, "Ms. Kagan is right." She urged Kagan to be forthright in answering questions about how she approaches judging.

A preview of how Kagan's words may haunt her came least year during her confirmation hearing for the job of solicitor general. Sen. Orrin Hatch, R-Utah, asked Kagan about the article and how it squared with a judge's pledge of impartiality.

"It is a great question, Senator, and I am not sure that sitting here today I would agree" with what she had written in the article, Kagan replied (see page 118 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_senate_hearings&docid=f:55828.pdf.

"I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really was not understanding completely what the judicial nominee in front of me meant and what she thought. But I think that you are exactly right, of course, that ... this has to be a balance. The Senate has to get the information that it needs, but as well, the nominee for any particular position, whether it is judicial or otherwise, has to be protective of certain kinds of interests."

In a http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-QFRs.pdf written answer to a follow-up question on the same issue asked by Hatch, Kagan elaborated on her new view of the matter: "I do think now, more than I did then, that significant considerations (even apart from specific rules of judicial conduct) support some real reticence from judicial nominees on these matters; I am also less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested. Yet that leaves the question just what these hearings should be about -- what matters Senators should explore with the nominee and how the nominee should be evaluated. I confess to finding these questions very difficult."