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Elena Kagan’s confirmation hearings

On Monday the Senate Judiciary Committee begins confirmation hearings for President Obama’s second Supreme Court nominee, Solicitor General Elena Kagan. Expectations are low.

The conventional wisdom is that, when not bloviating about their pet causes or dissecting Kagan’s memos as a staffer in the Clinton administration, senators will artlessly attempt to get the nominee to say how she would rule on same-sex marriage, the constitutionality of healthcare reform and other hot-button issues. Kagan, according to this view, not only will refuse to comment on particular cases, but will avoid enlightening senators in general about her views on broad constitutional issues. Never mind that in a 1995 law review article Kagan denounced the Supreme Court confirmation process as a “vapid and hollow charade” and faulted senators for not insisting “that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues.”

It doesn’t have to be this way. Instead of playing cat-and-mouse with the nominee about how she would rule in future cases, senators should think big and press Kagan for her views on large and important areas of the law. The more serious and less confrontational the questions, the more likely Kagan will be obliged to answer in kind.

We suggest five areas of inquiry:

The role of a Supreme Court justice. At his confirmation hearings, Chief Justice John G. Roberts Jr. compared a judge’s role to that of a baseball umpire who calls the balls and strikes. But Roberts ignored — to extend the metaphor he used — that the court gets to choose the games it will officiate and defines the strike zone. Does Kagan side with Roberts or with retired Justice David H. Souter, who noted in a recent speech that sometimes justices must make a choice when “the Constitution has not made it in advance in so many words.” For example, does she agree with the current court that, in deciding whether a practice amounts to cruel and unusual punishment, the justices should pay attention to “the evolving standards of decency that mark the progress of a maturing society”?

It’s also legitimate for senators to ask Kagan what values would inform her interpretation of what the late Justice Robert Jackson called “the majestic generalities of the Bill of Rights.” And to what extent will her personal experience enhance, or limit, her interpretation of the Constitution? Is there a role for the much-ridiculed quality of “empathy” in judging? And empathy for whom?

The war on terror. Kagan has been criticized by some liberals for saying, at hearings on her confirmation for solicitor general, that she agreed with Atty. Gen. Eric H. Holder Jr. that under the laws of war an enemy combatant could be detained without trial. On the other hand, as dean of Harvard Law School she signed a letter opposing legislation to strip detainees at Guantanamo of the right to challenge their confinement in court. To some critics of anti-terrorism policy, this is a contradiction.

The positions Kagan has taken, especially as an advocate for the administration, are not necessarily a guide to her current views of whether and to what extent the Constitution empowers the president to take unilateral action in wartime. For example, could the president suspend civil liberties to deal with a terrorist threat?

The court and Congress. In a series of decisions, the court has second-guessed Congress about numerous issues, including the need to protect women from violence, the scope of religious freedom and the importance of campaign finance reform in combating the reality and appearance of corruption in federal elections.

How does Kagan see the relationship between Congress and the court? In what sorts of cases should the court aggressively scrutinize Congress’ decisions to see if they comport with the Constitution? For example, should the justices be more willing to overturn statutes that threaten free speech than those that regulate economic activity? How broadly should the court interpret Congress’ power to enforce the provisions of the 14th Amendment, which prohibits states from depriving any person of life, liberty or property without due process of law and guarantees “equal protection of the laws”?

Race. In 2007 a divided court overturned programs in Seattle and Louisville that aimed to bring public school students of different races together. Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Roberts was voicing a belief, prevalent in conservative legal circles, that the Constitution is “color-blind” and that race-conscious programs designed to bring children together are just as objectionable as the segregated public schools invalidated by the court in the landmark 1954 decision of Brown vs. Board of Education. In his dissent, Justice Stephen G. Breyer said that plans designed to achieve integrated schools served a “compelling” interest. Does Kagan agree with Roberts or with Breyer?

The schools case raised another issue on which Kagan should be asked to comment: whether this country has reached a point at which extraordinary efforts to end racial discrimination — such as affirmative action plans and the Voting Rights Act — are no longer necessary.

Technology and the 1st Amendment. If Kagan is confirmed, she and her new colleagues will increasingly confront questions of free speech and freedom of the press arising from the communications revolution. Just as the invention of the telephone required the court to reinterpret the Constitution’s ban on illegal searches, so does the advent of the Internet and the proliferation of new means of communication — from text messaging to digital video recorders to e-mail — demand that the court think in new ways about freedom of expression.

Does Kagan believe that Internet service providers have a right to block content or make it easier for users to access some sites rather than others? Does the proliferation of electronic sources of information and entertainment undermine the rationale for the federal regulation of broadcasting? Does the freewheeling nature of the Internet, which has turned everyone with an opinion and a computer into a columnist, call for changes in libel law? And should those who post derogatory material about someone be responsible if that person harms herself?

This list does not exhaust the questions senators might usefully pose to a nominee who could still be on the court 30 years from now. But a candid conversation on these issues would be a productive use of the committee’s — and Kagan’s — time, and a repudiation of the “vapid and hollow charade” she once criticized.


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