In 1995, a brash assistant law professor at the University of Chicago decided to blow the whistle on a broken Supreme Court confirmation process.
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 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.
Although she has held two of the highest-profile jobs in American law – US solicitor general and dean of Harvard Law School – she has never worked as a judge and has only limited courtroom experience as a lawyer. Most of her career she’s worked as a law professor or dean. She’s also served as a lawyer in the White House, as a legal adviser in the Senate, and as a judicial law clerk.
Democrats downplayed her lack of judicial experience. “Elena Kagan’s nomination will bring a diversity of experience missing since Justice [Sandra Day] O’Connor retired in 2006,” said Judiciary Committee Chairman Patrick Leahy. “I have urged President Obama to look outside the judicial monastery to identify qualified nominees…. Elena Kagan is just such a nominee.”
Senate Republican leader Mitch McConnell questioned whether Kagan is qualified for the high court job. “One does not need to have prior experience as a judge before being appointed to the country’s highest court,” he said. “But it strikes me that if a nominee does not have judicial experience, they should have substantial litigation experience. Ms. Kagan has neither.”
Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, also questioned Kagan’s experience. “Ms. Kagan’s lack of judicial experience and short time as solicitor general, arguing just six cases before the court, is troubling,” he said.
“The public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to impartial application of the law and the Constitution,” Senator Sessions said. “With no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics.”
“I understand there has been concern that she never has been a judge,” he said. “I can only say that if the Citizens United [Supreme Court] ruling, which allowed corporate cash to dominate American elections, is what results from a court made up of people who wore robes most of their lives, then Elena Kagan’s experience outside courtrooms should not be held against her.”