Kagan deserves confirmation to the Supreme Court
Ideally, Senate confirmation hearings for a Supreme Court nominee serve two purposes: to test the potential justice’s grasp of the law and to elicit her views about the Constitution and the role of the court. This week’s hearings for Solicitor General Elena Kagan accomplished the first objective but not the second. Kagan faithfully followed the playbook used to advantage by Chief Justice John G. Roberts Jr. at his hearings five years ago: Demonstrate an encyclopedic knowledge of Supreme Court decisions, commit yourself to judicial modesty and a respect for precedent, and elegantly evade questions that might reveal your own views about constitutional issues.
We had hoped that Kagan would be more forthcoming. In a now famous 1995 article, she characterized confirmation hearings as a “vapid and hollow charade” and criticized senators for not insisting “that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues.”
It wasn’t to be, despite efforts by senators of both parties to explore serious issues of legal philosophy. Candor fell victim to the conventional political wisdom that the least said by the nominee, the soonest mended.
Kagan circumscribed the conversation with the Senate Judiciary Committee by saying she wouldn’t “grade” past decisions of the court. Yet her appraisals would have illuminated her views about subjects such as Congress’ power under the Constitution’s Commerce clause and gun control — without committing her to overruling those decisions. The closest she came to commenting on a controversial case involved this term’s Citizens United decision, in which Kagan had argued for the constitutionality of laws restricting election spending by corporations. “I did believe we had a strong case to make,” she told the committee. Other decisions she described as “settled law” — another echo of Roberts’ testimony that was simply one more way of ducking questions about her own opinions.
Otherwise Kagan’s testimony was masterful in the same way as was Roberts’. With self-assurance and a sense of humor, she dispelled any concern that her lack of judicial experience might reflect an unfamiliarity with constitutional issues. She also demonstrated grace under the pressure of inquisitorial and repetitive questions, particularly about her decision as dean of Harvard Law School to deny military recruiters access to the school’s career counseling office. Kagan made a persuasive case that, far from being “anti-military,” she sought a way to provide access to military recruiters while honoring Harvard’s ban on recruiting by employers who discriminate against gays and lesbians.
As disappointed as we were by her evasiveness on broad constitutional issues, the hearings confirmed our original judgment, based on the excellence she has displayed during a long career, that she is well qualified for the court. She deserves confirmation.
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