Confirmation Theater

Elena Kagan is set to participate in a confirmation process she once dismissed as a charade

My task this week is to write a column on how criminal justice issues are likely to play out at the Elena Kagan confirmation hearings, and how her expected confirmation will tilt the balance between the rights of the accused and the government's power to police. The answer to the first question is easy: As with the Sonia Sotomayor hearings, it's unlikely that criminal justice issues will get much attention at all. There's little difference between the Democrats and Republicans on these issues, which means there aren't any political points to be won by grandstanding. That's bad enough. But the answer to the second question is more disturbing still. The confirmation process has morphed into political theater designed to keep us as much in the dark about prospective Supreme Court nominees as possible. And according to Beltway conventional wisdom, that's exactly the way it ought to be.

You'd think one might get a feel for how Kagan will come down on hot-button issues by looking at her time in the Solicitor General's office. Shorty after President Obama announced her nomination, I did just that, noting that during her tenure, her office argued that states should be allowed to deny post-conviction DNA testing even when it could establish innocence; argued that prosecutors should have absolute immunity from lawsuits even when they manufacture evidence that results in the conviction of an innocence person; and argued for an expansive power to censor material the government deems offensive. Salon's Glen Greenwald wrote extensively on how Kagan's office argued for further expansion of executive power on issues like extraordinary rendition, executive privilege, state secrets, and indefinite detainment.

But Tom Goldstein at SCOTUSBlog cautioned that we shouldn't judge Kagan by her tenure at the Office of Solicitor General. The purpose of that office is to defend the law, and to defend the policies of the current administration. Some of those cases were also holdovers from the Bush administration and by tradition new administrations tend not to change course from prior administrations once a case has worked its way up to the federal appeals courts. Both of those assertions are largely true—and problematic. I've never quite understood why we'd have an office whose purpose was to defend all federal law, even those laws the president personally believes are unconstitutional.

We can say that she probably took the job knowing where her boss generally came down on these issues. It's safe to say that Obama interviewed Kagan for the job. And it seems likely that they discussed his priorities for the position. He obviously was comfortable enough with her positions to hire her, and she obviously was comfortable enough with his to accept. That, or Kagan was willing to take a powerful job that would require her to argue in favor of laws and policies that she believes are unconstitutional. If she did have objections to any of these policies, they weren't strong enough to force her to resign instead of arguing that the highest court in the land should give its imprimatur to laws and policies she found unconstitutional.

But if we're not allowed to ascribe to Kagan the arguments she made before the Supreme Court as Solicitor General, it would at least be helpful to know on which cases she might have disagreed with the Obama administration, and in particular those cases where she may have voiced her disagreement. But we aren't allowed to know that either, thanks to executive privilege. I suppose a senator could ask her this question during her confirmation hearings this week. I'm certain she won't answer it.

But Kagan also served as a legal adviser in the Bill Clinton administration. There, she argued against remedying the sentencing disparity between crack and powder cocaine, and took a hard line against medical marijuana. Can we judge her on that advice? Kagan's defenders say no. Her job there was in part to recommend legal positions for the administration with an eye toward the political climate at the time. So, we're told, we shouldn't assume these are positions she actually believes, though if she doesn't believe them we're once again looking at someone who for the sake of politics was willing advance policy positions she didn't personally believe. But if pressed by Republicans on the point, Kagan can merely defer to Supreme Court Chief Justice John Roberts. During his confirmation hearings about memos he wrote as an adviser in the Reagan administration, Roberts replied that he'd likely approach those issues differently as a Supreme Court justice than he would as a legal adviser whose client was the federal government.

If we can't use Kagan's time in the Solicitor General's Office or the Clinton administration as possible indicators of how she may rule on the Court, we're left with her tenure as the dean of Harvard Law School and the 14 articles she wrote for law journals. Strangely, this means we're supposed to judge Kagan not by the decisions she made and the positions she took when she actually wielded political power, but by the positions she took and decisions she made that had little to no effect on public policy. And perhaps not even then. As prominent legal blogger and UCLA Law Professor Eugene Volokh explains, Kagan's law review articles were more analytical (a good thing in a law review article, Volokh explains), didn't stake out clear positions, and probably aren't reliable indicators of how she'd rule as a Supreme Court justice.

Even all of this would be tolerable if Kagan were to clearly articulate her judicial philosophy this week. But that isn't likely to happen. Like her recent predecessors, Kagan is expected to play the cipher, offering only vague platitudes about the rule of law, the Constitution, and equitably applying the law. Kagan is aspiring for a promotion to one of the 10 most powerful positions in the U.S. government, where she'll likely serve for decades, and where she'll make profoundly consequential rulings on the balance between government power and individual rights. Yet we're not permitted even the slightest glimpse into what values and guiding principles might influence those decisions.

There is a school of thought that says elections matter, and with winning a presidential election—particularly winning one as clearly as Obama did—a president can expect to have his nominees confirmed, provided they're qualified and hold positions that fall within the parameters of reasonable public debate. I don't buy that. The Constitution delegates to the president the power to nominate, not the expectation that the Senate will confirm his nominations.

But even if you buy this line of thought, on many of the issues Kagan is likely to hear as a Supreme Court justice—particularly issues related to executive power and the war on terror—President Obama has done a 180 on the positions he advocated back when he was a candidate for the presidency. That is, if "elections matter," these weren't the positions that won the last election. And Elena Kagan is the person Obama the president hand-picked to argue his broken promises before the Supreme Court.

To be fair, this column isn't about Elena Kagan so much as it's about how the evolution of the confirmation process and the federal government's increasing hostility to transparency keeps the public ever more in the dark, even on matters as important as the judicial philosophy of a Supreme Court nominee.

So let's make this more about Kagan. It's been well-reported that Kagan has strong opinions on the confirmation process. She even agrees with me. In a review of Stephen Carter's book A Confirmation Mess, Kagan lamented that the confirmation process has devolved "to a place where comment of any kind on any issue that might bear in any way on any case that might at any time come before the Court is thought inappropriate." She added, "what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate. . . What has happened is that the Senate has ... let slip . . . the legitimacy and the desirability—of exploring a Supreme Court nominee's set of constitutional views and commitments."

Kagan now plans to decline comment on any issue that might bear in any way on any case that might come before the Court. She'll do her absolute best to prevent any serious substantive inquiry into her beliefs, and she'll make it clear that it's neither legitimate or desirable for the Senate to insist on exploring her set of constitutional views and commitments. If we aren't permitted to look at her record in public office as an indication of how Kagan might balance government power with individual rights, we're left to judge her on this: Kagan recognizes that the confirmation process is a charade designed to keep information away from the public, and to prevent the public from forming an informed opinion about who will sit on the Supreme Court.

And she's chosen to participate in it anyway.

Radley Balko is a senior editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Oswald Acted Alone||

    Well, yeah, I think that the mortgage interest deduction is bad policy, but I'd be a fool not to take it.

  • G-Love||

    When did we nominate Fred Flintstone to the SCOTUS? And when did Fred Flinstone start wearing earrings? I'm confused...

  • ||

    Why should Wilma and Betty get all the bling?

  • JoshINHB||

    "When did we nominate Fred Flintstone to the SCOTUS?

    We didn't, its Doug Hefferman in drag,
    he'll be moonlighting in SCOTUS to make extra money to finally take Carrie on a real honeymoon.
    Much Hillarity will ensue.

  • Stewie Griffin||

    I agree with Elena Kagan that Supreme Court hearings are a sha-RAHD, but I disagree with her about the pronunciation!

    Brian says she looks more like Patton Oswalt from "King of Queens" than Kevin James, and I have to give a concurring opinion on that one.

  • ||

    Radley rips Kagan a new one. She gets confirmed despite no one knowing anything about how she'd act as a SCOTUS justice, other than being generally an illiberal modern "liberal".

  • Slap the Enlightened!||

  • Almanian||

    Kagan now plans to decline comment on any issue that might bear in any way on any case that might come before the Court.

    So...she'll be able to discuss Fiji's economy, imaginary friends of Pete Maravich, the historical role Smurfs played during the Renaissance, and...not much else then.

    *sigh*

  • SpokesSmurf||

    Don't joke about that.

    After all, you know that we were the ones that made all those new blue pigments available.

    Without Smurfs there'd be no Mona Lisa, and don't you forget it!

  • Peyo||

    Shouldn't you be SpokesSmurf Smurf? Consistency, you know. BTW, I created you little guys and I'm destitute!

  • SpokesSmurf Kennedy||

    Nah.

    I changed it cause I'm going into politics.

    And if you wanted gratitude you should have given us more than one girl. I mean, it's like a Star Trek conventions in that village.

  • Robert||

    So how may Smurfs do they have to grind up to make a tube of paint?

  • EscapedWestOfTheBigMuddy||

    Depends if they include hefty or not...

  • ||

    OK that seems to make a lot of sense dude.

    Lou
    www.real-anonymity.se.tc

  • Almanian||

    This is the voiceover:

    Kagan recognizes that the confirmation process is a charade designed to keep information away from the public, and to prevent the public from forming an informed opinion about who will sit on the Supreme Court.

    And she's chosen to participate in it anyway.

    And then play the Dramatic Squirrel/Dramatic Olberman video. Perfect!

  • ||

    Has the hearings revealed that Kagan has ever been anything but a liberal apparatchik? Seriously, the woman seems to have literally never rocked a boat or had an independent thought in her entire life. After this, I don't ever want to hear a liberal talk about how we need the best qualified for the court.

  • shrike||

    Sadly, we have become too polarized to care about principle.

    I care about the personal Right to Privacy - conservatives do not.

    In fact, Authoritarians like Scalito/Thomas want a Catholic police state to police sexual activity. That is their Holy Worm.

    "Griswold" was the dividing line betwixt the Christo-Fascists and the Secularists.

    I side with our secular Constitution.

  • ||

    shriek, you actually tend to side with obsessive-compulsive insanity. And possibly Tourette Syndrome.

  • PIRS||

    I certainly support the right of consensual adults to engage in any consensual sexual behavior. But let me ask you this.

    Do you think the right to privacy includes my right to own firearms in the privacy of my own home? Suppose I like to keep my firearms in my bedroom? Suppose I happen to live in Chicago or Washington, D.C.?

  • Robert Bork||

    Where is the right to privacy enumerated in the Constution? The word "privacy" specifically?

  • PIRS||

    My comment was directed to Shrike, not you. But I will say this. The Constitution is a document of negative rights. It tells the government what it cannot do to us. Anything not specifically given as a power to the government is a power it does NOT have. It does not give the government the power to invade our privacy.

  • Elena Kagan||

    Wanna bet?

  • Constitutional Gambler||

    Yes, actually. How much are we dealing with?

  • shrike||

    Where is the Right to Self Defense enumerated in the Constitution?

    Sure, you may own a gun.

    But brain-dead textualists must admit "self-defense" is not literally in the Constitution.

    The Constitution is therefore a dynamic document.

    Claims to Mosaic tabletism are ludicrous - as is the reality of a goatfucker who walked off a mountain with everlasting legal truth.

  • PIRS||

    I will repeat what I told the commenter claiming to be Robert Bork. The Constitution is a document of negative rights. It tells the government what it cannot do to us. Anything not specifically given as a power to the government is a power it does NOT have. It does not give the government the power to invade our privacy. Nor does it have the power to deny us the right to self-defense.

  • shrike||

    Nahh, Look at the Tax and Spend Clause.

    The Feds can go "positive" (for lack of a better word).

  • PIRS||

    "Tax and Spend Clause."

    LOL

  • shrike||

    “ The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises ”

    Is that not outwardly "positive"? - (again - not in the Libertarian sense).

    Fuck you, man.

    Admit it.

  • shrike||

    I am waiting.

    Is the Tax and Spend Clause not an outwardly assertive "right" of the Government embedded in the original wording?

    Again - Fat Rush the Redneck is a liar.

    oh - and High-Pitch Spermy Voice Mark Levin is too. I could crack either of these fuckers skulls open in a debate.

  • Almanian||

    Shriek, they're called "enumerated powers", not "government rights". Look it up sometime...

  • shrike||

    Subtle distinction but probably valid - that is fine.

    I just can't stand Jeff FUCKING Sessions - runt anti-freedom shitbag "constructionisty" boy ass-hole pipe in on longstanding legal issues.

    Sessions is a cuntstain on liberty.

  • PIRS||

    A power, but not a right. In any case I am an an-cap so, I think the whole thing is illegitimate. I like the constitution to the degree it is a constraint on government. But the government, with a few recent exceptions, is not following its own rules anymore.

  • PIRS||

    "I am waiting."

    Apparently Shrike thinks everyone should be glued to the computer 24/7. We have no right to eat, sleep, go on a date, read, watch TV or do anything but answer his posts.

  • PIRS||

    Ever heard of the 9th and 10th Amendments?

  • shrike||

    The Tenth Amendment should be removed. Government should have as much power as it wants... as long as it's all in the hands of the Democrats.

  • shrike||

    fake shrike is here - his appearance admits con-idiot defeat.

  • PIRS||

    I do not like impersonators either. But what are your views on the 9th and 10th Amendments?

  • ||

    We're waiting...

  • JoshINHB||

    Where is the right to privacy enumerated in the Constution? The word "privacy" specifically?

    Bite me doucebag!!!

    9th Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    10th Amendment -"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    Where exactly does the constitution say you can fuck with my right to privacy? Or inebriation?

  • Cyto||

    Pay attention to JoshINHB. The constitution does not tell the government what it cannot do. It tells it what it can do. It grants the government very specific and limited powers. It says so right in the document. It also says that anything not specifically granted to the government in the constitution is reserved for the states or individual citizens. Reread those 9th and 10th amendments. If a power is not delegated to the federal government by the constitution, it is reserved to the states or the people.

    It is a pretty simple concept, and it is spelled out in very simple language. Too bad nobody who has the power to do anything about it gives a flying fuck. They've decided that weasel words and mental gymnastics allow them to redefine the meaning of the english language to allow them pretty much any power they damn well please. Just look at the Citizens United case: The arguments against the majority decision were not constitutional arguments, they can all be reduced to "but it is really, really important that the government be granted this power".

    Even if you are right in that analysis, "because I said so" is not a constitutional argument, and making decisions on government power based on that criteria is tyranny.

  • shrike||

    btw. PIRS. My answer on gun ownership and privacy are an unqualified "yes".

    I am a classic liberal - not a "progressive".

  • PIRS||

    Do you mean "Classical" as in Thomas Jefferson? Or do you mean classic as in John F. Kennedy but not Ted Kennedy?

    In any class I am glad you support the right to gun ownership.

  • shrike||

    Classic liberal = Hayek, Ayn Rand, and Jefferson.

    I own and love guns. Guns are a tiny part of this.

  • PIRS||

    So you love guns, especially when they are used by the government to rob people of their property.

  • JoshINHB||

    "Classic liberal = Hayek, Ayn Rand, and Jefferson.

    Classic totalitarian cult leader = Ayn Rand

    FIFY

  • PIRS||

    But Shrike's views bear little resemblance to any of those three people. With the possible exception of their views on privacy.

  • ||

    shrike,

    You know, something to keep in mind is that the Court has been, by most measures, a conservative court for most of the last thirty years. Despite that fact, the Court never did anything like ban abortion or otherwise overturn much liberal precedent. In some respects that's good; in other respects, it sucks.

  • shrike||

    Abortion is just a part of the issue. 'Griswold" was about outlawing the Pill and 'Lawrence vs. Texas' let Scalito (sic) boast about outlawing consensual sex in the privacy of the home.

  • qwerty||

    If we had five Clarence Thomases, there would be a lot of liberal precedents overturned. Unfortunately, Kennedy is only slightly to the right of center, and Roberts and Alito are too wed to stare decisis.

  • The Libertarian Guy||

    Meanwhile, liberals want a secular police state on non-sexual activity - minus drug use, of course. But when it comes to food, energy use, smoking, and other trivial matters... liberals want to control it or tax it or both.

  • shrike||

    Yeah - mainstream liberals want to outlaw salt nationwide! All Salt!

    Rush (King of the Rednecks) Limpjaw will get you defeated in a battle of truth every time.

    The fucker lies 24/7.

  • Jordan||

    Yeah - mainstream liberals want to outlaw salt nationwide! All Salt!

    Yeah, that's clearly what he said. Enough with the strawmen.

  • shrike||

    Ok - food is out.

    That leaves you in favor of pollution.

    Run on that as a platform, idiot.

  • ||

    So I can't go swimming in the ocean?

  • JoshINHB||

    I care about the personal Right to Privacy - conservatives do not.

    Shrike,

    you ignorant ....

    The progs will throw your ass under the bus the instant it suits their needs.

  • ||

    At least it'll still be 5-4. I don't think Obama is going to get another appointment. At least, not one that will be approved.

  • ||

    Yeah. Unless Scalia, Thomas, Kennedy, Alito or Roberts die an unnatural death, he is not replacing anything but one liberal for another. If the Republicans win in 2012, I wouldn't be surprised to see Scalia retire and maybe even Thomas who is rumored to be bored with the job.

  • Rahm Emanuel||

    Unexplained death? No sweat! I know someone who knows someone. Piece o' cake.

  • ||

    Have you left yet?

  • Ruth Bader Ginsburg||

    Oh really? My husband just died, my pancreatic cancer is probably terminal, and my age is pretty up there. In addition to the other justices rumored to be unhappy with the job. How many conservative-ish justices have died in office or served exceptionally long tenure?

    I'll bet Pres. Obama nominates more justices than any other president in recent memory.

    You, citizens, will be getting a liberal court again. Count on it.

  • PIRS||

    Ruth,

    You are also on the left of the court. Maybe not the MOST to the left but left you are. Replacing a leftist with another leftist is a wash.

  • ||

    Obama has a chance to put some young liberals on to shore up the liberal side of the Court, but no way, no how is the soon to be GOP-controlled Senate going to consent to the type of crappy nominees being rubber-stamped by the current Senate.

  • Barack Obama||

    There are those who say that justice and fairness are applied unequally and have been since the inception of our great land. When we have police officer's who act "stupidly" there comes a time to right this wrong, to tip the scales of justice in favor of the downtrodden. Our senate has a rich tradition of properly vetting and thoroughly questioning nominees for a seat on the highest court of our great land. Let me clear, all of the justices I nominate will be of the highest caliber and transcend the day to day partisan bickering and uphold the spirit of our Living Breathing Constitution so justice can be meted out fairly with no pretenses of superiority and will rule cases before them with empathy for the average citizen.

  • Barack Obama||

    Let me be clear, in no way would I botch my trademark phrase. A fly flew in my face and rodents are running amok. One must have chewed the cable to my teleprompter. When the frogs appear and blood runs through the streets as a result of this poor ruling by the Supreme Court, then the time will be at hand.

  • T||

    Is it just me or do she look like Kevin James in drag? Alternatively, one of les autres thinks she looks like a muppet.

    It's not like I'm going to find out a damned thing about her views from this cluster, so I may as well criticize her looks.

  • Ska||

    Dude, I was literally typing a Paul Blart Mall Cop joke when I decided to hit refresh first and saw this comment.

    You dirty bastard.

  • T||

    Sorry, man. I'm sure your comment would have been funnier.

  • ||

    Yeah, me too. Way to screw that up. Leave comedy to the professionals, like...uh...not Kevin James.

  • Another ||

    intelligent Libertarian comment for my book:
    Yes Virginia, Libertarians are Retarded

  • T||

    Will that be self-published before or after your manifesto "Eye M Sofa King Wee Todd Idd" hits the internet? Be sure to post the lulu link when you're done. Maybe somebody other than your mom will buy a copy.

  • I'll make sure ||

    to invite you to the book signing in Texas;-)

  • Robert||

    Is that Kevin James the funny magician?

  • Richard ||

    Actually, if Senate Republicans wanted to make this interesting, they could do worse than to pose the questions that George Will asks here and here.

  • ||

    "Our government is now taking so steady a course as to shew by what road it will pass to destruction, to wit, by consolidation first, & then corruption, it’s necessary consequence. The engine of consolidation will be the Federal judiciary, the two other branches the corrupted & corrupting instruments."

    Thomas Jefferson-Letter to Nathaniel Macon August 19, 1821

  • Almanian||

    That's Twilight Zone-ish foresight...scary

  • josey||

    It need not have been foresight, at all. If the right to employ physical force is explicitly granted to one organization, while being universally denied to all others, which direction ought one expect affairs to tend over the long run?

  • ||

    You're right of course, but in Jefferson's context it's not applicable: the SCOTUS doesn't have the right of physical force.
    That's why Lincoln as able to thumb his nose at them and their habeus corpus decision during the Civil War...what could they do about it?

  • josey||

    Maybe so, but this is only another demonstration of the fact that so many otherwise-clear thinkers have inexplicably labored under the misapprehension that a government of separated powers is not still a monolith.

  • J. Slater||

    Correction on the date:
    October 20, 1821

  • pj||

    I realize it doesn't add a whole lot to the conversation, but i have to quibble with the "increasing hostility to transparency" bit... It's a one-off rant, and that's understandable, but it's a bit sloppy. Railing against the hypocrisy of an administration that was elected on calls for transparency and then reneging is one thing, but Obama is hardly up on the list of most opaque, back-room dealing presidents. I'm fairly sure Mr. Obama hasn't been having midnight meetings with Ms. Kagan to hammer out future court rulings (i'm looking at YOU Teddy...).

  • qwerty||

    The process sucks. The last nominee to give honest answers to questions was Robert Bork, and he got Borked. It would be nice to think that our judges could be impartial arbiters of the original meaning of the constitution, but the judges can only be as good as the presidents and senators who nominate and appoint them. And the president and senators are only as good as the people who elect them. Who's fault is it that these hearings are a joke? Your fellow citizens.

  • DougBuchanan.com||

    The article failed to state the single most known maxim of judicial appointments. One gets a judicial appointment, by the executive branch, by creating a record of defending and increasing the power of the executive branch. Entrenched.

    Respectfully, DougBuchanan.com

  • hmm||

    We are about to elect Mike Myers acting as Austin Powers in drag to the supreme court.

  • ||

    Our right to privacy is covered in the Constitution, as a Common Law right. Not specifically, but the Common Law is mentioned several times. We didn't put meaningless words in there. There are no gender specific rights, either. Killing babies was dreamed up by some messed up people.

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