The Self-Pity Elena Kagan »
Kagan’s New View of Confirmation Hearings?
Jonathan H. Adler • May 11, 2010 10:30 am
In 1995, then-law professor Elena Kagan wrote that Senators should ask, and judicial nominees should answer, more probing questions about a nominee’s judicial philosophy. Her article, “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995), maintained that the Bork hearings’ robust give and take over constitutional law was a better model than the “vapid and hollow charade” witnessed in subsequent hearings. At the time, Kagan argued that it is appropriate, if not essential, for Senators to inquire into a nominee’s “broad judicial philosophy” as well as “her views on particular constitutional issues” including those “the Court regularly faces.” She also maintained that Senators should demand answers and downplayed concerns that detilaed questioning of this sort could compromise judicial independence. According to Kagan, this approach would make confirmation hearings “an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”
Does Kagan still hold this view? Maybe not, according to Ron Klain, Chief of Staff for Vice President Biden. As the Daily Caller reports, Klain told reporters that Kagan has come to see the wisdom of a more restrained and closed-mouth approach.
Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.
“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.
“You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.
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Menshevik says:
I hope the Republicans will have enough courage to closely question Kagan on the following (quote from Ed Meese, quoted in National Review Online yesterday):
“In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the “despised and disadvantaged.” The problem with this view—which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law—is that it allows judges to favor whichever particular client they view as “despised and disadvantaged.” The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.”
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