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

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

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.

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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.

She is the first woman to serve in two of the most exalted jobs in law – as dean of Harvard Law School and as US solicitor general, the government’s lawyer at the Supreme Court. She is a highly regarded scholar of the First Amendment and administrative law. She is by most accounts smart, charming, and a beloved teacher.

While it is true that she’s never been a judge or litigated a trial to verdict, she has demonstrated in her six arguments at the high court a deep understanding of constitutional law and an apparent comfort level in her discourse with the justices.

The real question isn’t can she do the job. Rather, it is what will she do once she’s in the job. As Kagan herself recognized in her 1995 essay, the confirmation hearing process is unlikely to answer that second question unless the nominee herself decides to answer it.

In February 2009, Kagan appeared before the same Senate Judiciary Committee she’ll face this summer. In 2009, the issue was whether she should be confirmed as solicitor general. Nonetheless, the hearing transcript offers a preview of the likely tone and content of her Supreme Court confirmation hearings. It also offers a portrait of Elena Kagan painted in her own words.

Here are some excerpts:

Kagan on moral injustice in US society:
“I view as unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation.”

On wisdom:
“One of the things I would hope to bring to the job [as solicitor general] is … not just the study I have made of constitutional and public law, but a kind of wisdom and judgment, a kind of understanding of how to separate the truly important from the spurious.”

On how she’ll overcome her lack of courtroom experience:
“When you get up to that podium at the Supreme Court, the question is much less how many times have you been there before than what do you bring up with you. And I think I bring up some of the right things. I think I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket. I think I bring up some of the communication skills that have made me – I am just going to say it – a famously excellent teacher.”

On humility:
“One of the good things about me is that I know what I do not know and that I figure out how to learn it when I need to learn it.”

On clerking for Justice Thurgood Marshall and being asked to write memos attempting to channel her boss’s legal conclusions and high court strategy:
“I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law and a person who – let me be frank – had very strong jurisprudential and legal views. He knew what he thought about most issues. And for better or for worse, he was not really interested in engaging with his clerks on first principles. And he was asking us … to channel him and to think about what cases he would want the court to decide.”

On a memo she wrote to Justice Marshall suggesting that a federal law subsidizing social welfare groups with religious affiliations would violate the First Amendment’s establishment clause because, she said, all such groups would find it difficult to refrain from injecting some kind of religious teaching:
“That is the dumbest thing I have ever heard.”

To Sen. Benjamin Cardin (D) on presidential power:
“There are occasional times where presidential power still exists even if Congress says otherwise…. But that category of cases, senator, I think is exceedingly narrow.”

To Sen. Lindsey Graham (R) on the use of military law to indefinitely detain enemy combatants:
“I think it makes sense, and I think you are correct that that is the law.”

On a constitutional right to same-sex marriage:
“There is no federal constitutional right to same-sex marriage.”

On gun rights:
“There is no question, after [District of Columbia v.] Heller [in 2008], that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong, although not unlimited, protection against government regulation.”

On judicial activism – the idea that the courts rather than elected branches should take the lead in creating a more just society:
“I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

On a judge’s reliance on personal values and beliefs in constitutional interpretation:
“I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure, and precedent.”

On whether detainees being held by the US at Bagram prison in Afghanistan are entitled to the same legal right to challenge their detention as detainees at Guantánamo Bay:
“I should refrain from saying anything more than the government previously has argued on the questions you raise.”

Related:

Obama cites 'temperament' of Kagan, Supreme Court nominee

Supreme Court confirmations, as Elena Kagan saw them

Supreme Court nominee Elena Kagan: Will her own words bite her?

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