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Questions Elena Kagan has already answered

Supreme Court nominee Elena Kagan lacks a paper trail. But her Senate confirmation hearing last year for solicitor general offers a preview of what's to come.

By Staff writer / May 17, 2010

Supreme Court nominee Elena Kagan visited the office of Senate majority leader Harry Reid May 12.

Jason Reed/REUTERS


In her now-famous 1995 essay in the University of Chicago Law Review, Elena Kagan presented a vivid critique of all that she felt was wrong with the US Supreme Court confirmation process.

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Instead of a substantive discussion of the meaning of the Constitution, role of the high court, and views of the nominee, the hearings had degenerated into a “vapid and hollow charade,” she wrote.

“The critical inquiry as to any individual … concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution,” Ms. Kagan said.

At the time she wrote those words she was a 35-year-old assistant law professor. Today, she is President Obama’s nominee to replace retiring Justice John Paul Stevens as one of nine justices on America’s highest court.

Ironically, or perhaps appropriately, she is now poised to deploy the same stealth strategy she found so frustrating 15 years ago in the carefully orchestrated confirmation hearings of Ruth Bader Ginsburg and Stephen Breyer.

“For them (as for most),” she wrote in 1995, “the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence.”

Kagan has since backed away from the opinions expressed in her essay. She now acknowledges that there are good reasons for prospective justices to choose their words carefully. Candid disclosure of a nominee’s view on an issue might be misconstrued as a pledge to vote in a certain way.

But this is little comfort to analysts on both the right and the left who want more information about what kind of justice Kagan will become once safely ensconced in a lifetime appointment.

Some Democrats worry that she may favor an expansive view of presidential authority at the expense of civil liberties in the battle against terrorism.

Meanwhile, Republicans are searching for evidence that she would use her position on the high court to legislate from the bench, deploying her power as a justice to right societal wrongs and champion the cause of the little guy. Because she’s never been a judge, Kagan has no paper trail demonstrating what kind of judge she’d be.

But Kagan is not a true stealth candidate.