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Supreme Court confirmations, as Elena Kagan saw them

Elena Kagan once urged aggressive questioning of and candid responses from Supreme Court nominees, but has lately backed off those views. Senate Democrats hail her 'diversity of experience.' Republicans question her qualifications.

By Staff writer / May 11, 2010

President Obama (c.) introduces Solicitor General Elena Kagan (r.) as his choice for Supreme Court justice at the White House on Monday. In a 1995 book review, she called for radical changes in the Supreme Court confirmation hearing process.

J. Scott Applewhite/AP

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In 1995, a brash assistant law professor at the University of Chicago decided to blow the whistle on a broken Supreme Court confirmation process.

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She complained that rather than triggering a public discussion of the cases and controversies facing the high court, Senate confirmation hearings had become a “vapid and hollow charade,” little more than “official lovefests.”

What the system most needed were tough, aggressive questions from the senators, and candid, revealing responses from nominees.

IN PICTURES: Justices with no prior judicial experience

What makes these pronouncements particularly relevant today is that they were written by Elena Kagan, who on Monday became President Obama’s nominee to the US Supreme Court.

In roughly two months, it will be Ms. Kagan herself sitting in the hot seat before the Senate Judiciary Committee. Her words, preserved in a book review in the spring 1995 issue of the University of Chicago Law Review, may come back to haunt her.

“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 wrote.

“The Senate’s consideration of a nominee, and particularly the Senate’s confirmation hearings, ought to focus on substantive issues,” she wrote. “The Senate ought to view the hearings as 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.”

The more revealing the responses, the better, she said. Nominees should comment on judicial methodology, prior case law, hypothetical cases, and even volunteer her thoughts on general issues like affirmative action or abortion, Kagan declared.

“The critical inquiry … concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution,” Kagan wrote.

The only restraint, she said, was that nominees must take care not to leave the impression that they were pledging to vote a certain way in future cases.

This view of the Supreme Court confirmation process stands in sharp contrast to the long-embraced conventional wisdom that high court nominees must avoid substantive discussions with senators to prevent being too closely linked to any potential outcome in a future court decision.

Kagan and her White House handlers are well aware of her 1995 book review. She was asked about it during her March 2009 confirmation hearing for her current job as solicitor general. At that time, Kagan backed away from the assertions and aggressive strategy, a move that suggests she is likely to adopt a similarly low-profile approach during her Supreme Court confirmation hearings.

Meanwhile, supporters and potential opponents are beginning to jockey for position as the confirmation process focuses exclusively on Kagan.

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