Judging Elena Kagan

In choosing Solicitor General Elena Kagan as his second Supreme Court nominee, President Obama — barely — has obliged supporters who wanted him to look outside one of several boxes in which recent appointments to the court have been made. Unlike all of her prospective colleagues at the time of their appointment, Kagan has never served as a judge.

But the selection of a solicitor general — often referred to as “the 10th justice” because of the office’s intimate relationship with the court — is a much less dramatic departure than the appointment of a politician in the mold of Chief Justice Earl Warren or an experienced private practitioner such as Justice Lewis Powell would have been. If confirmed, Kagan would still have a lot in common with other members of the current court, including an Ivy League law degree, Washington experience and service as a Supreme Court law clerk. She may not be a member of the “judicial monastery,” to borrow a term from Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), but she’s no stranger to its sacred precincts.

Yet if Kagan isn’t a particularly surprising choice, she is still an impressive one. A former dean of Harvard Law School, she would have been a plausible candidate for the court even before her service as solicitor general. As lawyers would say, the prima facie case for her confirmation is strong. But, especially given her lack of judicial opinions, members of the Senate Judiciary Committee have a duty to engage her in a conversation about her views of the Constitution and the role of a judge — an exchange in which she needn’t take positions on particular matters that might come before her.

Like it or not, Kagan has provided an opening for such a dialogue. In a 1995 law review article, she called Supreme Court confirmation hearings “a vapid and hollow charade,” complaining that “senators today do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues.” Kagan should reread her article and strive as a nominee to exhibit the candor she called for as a scholar. In return, her questioners should approach the hearings with a similar commitment to intellectual honesty, which has been woefully missing from recent judicial confirmations.

So far, Republican lawmakers offer little to suggest that they are capable of that sort of statesmanship. Only one Republican member of the committee — Sen. Lindsey Graham of South Carolina — voted to recommend the confirmation of Justice Sonia Sotomayor. The rest sought refuge in the absurd assertion that Sotomayor was outside the mainstream of legal thinking. The hearings on Kagan’s nomination thus will be a test not just of the nominee but also of those who sit in judgment of her.