The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade," a Chicago law professor complained, because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action and privacy.
It is "an embarrassment," she said, 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." Justice Clarence Thomas won confirmation, she said, even "after his substantive testimony had become a national laughingstock."
These comments from a 1995 article are likely to be a focus of the next Supreme Court hearing if their author — Elena Kagan — emerges as President Obama's nominee. White House aides say the president is near making a decision, perhaps as soon as Monday.
A former dean of Harvard Law School and currently the U.S. solicitor general, Kagan has generally avoided taking stands on controversial legal issues. But as a young University of Chicago law professor, she voiced frustration that nominees for a life-term seat on the nation's highest court were allowed to "stonewall" senators and refuse to discuss not only their "broad judicial philosophy," but their "views on particular constitutional issues."
Friends of Kagan say the article may prove a brief embarrassment if she is nominated, but they expect she can disavow it as the untested views of a young academic.
"I think she would say what every nominee says, that it is improper for a judicial candidate to speak in detail about issues that will come before the court," said Harvard Law Professor Carol Steiker, who has been friends with Kagan since the year they spent as clerks for Justice Thurgood Marshall.
Kagan declined to comment on the article through a spokeswoman.
Last year, when asked about the article in her Senate confirmation hearing, Kagan tried to explain away her statements as the brash words of a young judiciary committee staffer when it was chaired by then- Sen. Joe Biden.
"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 wasn't understanding completely what the judicial nominee in front of me meant and what she thought," she replied.
The article began as a review of a book by Yale law professor Stephen Carter, "The Confirmation Mess," which focused on the battle over Judge Robert H. Bork's nomination in 1987 and how it transformed subsequent hearings.
Bork, a Yale professor, had written conservative critiques of Supreme Court rulings on abortion, civil rights and the 1st Amendment, and senators pressed him to explain his views. He tried to do so, but contentious exchanges followed, and he was voted down by the Senate.
Ever since, Supreme Court nominees have steadfastly refused to discuss their views on legal controversies, insisting that doing so would undercut their impartiality.
In the article, Kagan attacked this approach, saying it deprives the Senate and the public of a chance to see how nominees think and what they believe.
"When the Senate ceases to engage nominees in a meaningful discussion of legal views, the confirmation process takes on an air of vacuity and farce," she said. "The hearings on Judge Bork ought to serve less as a warning than as a model."
Kagan also objected to Carter's view that the Senate should focus on a nominee's "moral character," and she did so with an apparent reference to the sexual harassment charges lodged against Clarence Thomas.
"Elevating a person who commits acts of personal misconduct (for example, sexual harassment) to the highest legal position in the nation sends all the wrong messages about the conduct that we as a society value and honor," she wrote.
But an administration advisor said Kagan was speaking in a hypothetical sense and not accusing Thomas of having harassed Anita Hill, the former aide who testified against him.
Kagan's article goes on to say it is a "terrible error" to focus on a nominee's personal conduct because the politicized debate "can become vicious, hurtful and sordid.…The second 'hearing' on Clarence Thomas ought to have taught at least that lesson,"
All the more reason, she concluded, to focus the debate on a nominee's "substantive views" about the law.