Striking a balance between the state’s police power and the rights of the accused is among the Supreme Court’s most important tasks. Yet criminal justice was virtually absent from the confirmation hearings for Supreme Court nominee Elena Kagan, just as it was from the hearings for Justice Sonia Sotomayor. Because there is little difference between Democrats and Republicans in their fondness for increasing police power, there aren’t many political points to be won by grandstanding on, say, the Fourth Amendment.
But even if there were more space between the parties on these issues, we’d still know almost nothing about where Elena Kagan stands on them. The confirmation process has morphed into political theater designed to obscure the views of prospective Supreme Court justices, not to reveal them. Worse, the Beltway conventional wisdom says this is exactly the way it ought to be.
You might think we could get a feel for how Kagan would come down on hot-button issues by looking at her time in the Solicitor General’s Office. Shortly after President Barack Obama announced her nomination, I did just that on reason’s blog, noting that during her tenure Kagan argued that states should be allowed to deny post-conviction DNA testing even when it could establish innocence; that prosecutors should have absolute immunity from lawsuits even when they manufacture evidence that helps convict an innocent person; and that the government should have an expansive power to censor material it deems offensive. Similarly, Salon’s Glenn Greenwald detailed how Kagan pushed for further expansion of presidential power in areas such as extraordinary rendition, executive privilege, state secrets, and indefinite detention.
But Tom Goldstein at SCOTUSBlog, exemplifying the typical Washington response, argued that we shouldn’t judge Kagan by her work for the Obama administration. “The Solicitor General acts as the attorney for the United States and therefore asserts the position of the government, without regard to whether she personally shares the same view,” Goldstein wrote. Yet it seems reasonable to surmise that Kagan knew where her new boss came down on these issues when she took the job. Obama obviously was comfortable enough with her positions to offer her the position; she obviously was comfortable enough with his to accept. The alternative is that Kagan was willing to take a job that would require her to ask the Supreme Court to set precedents she believes are unconstitutional.
If we’re not allowed to ascribe to Kagan the positions she took as solicitor general, it would at least be helpful to know in which cases she disagreed with the Obama administration, especially if she voiced her disagreement at the time. But we aren’t allowed to know that either, thanks to the broad and ever-expanding doctrine of executive privilege.
Kagan also served as President Bill Clinton’s associate White House counsel and domestic policy adviser, positions in which she took a hard line against medical marijuana and opposed eliminating the sentencing disparity between crack and cocaine powder. Can we at least judge her on that advice?
Kagan’s defenders still say no. Her job in the Clinton White House was to recommend legal positions for the administration with an eye toward the political climate of the time. We therefore shouldn’t assume these are positions she actually holds today. Similarly, when Chief Justice John Roberts was asked during his confirmation hearings about memos he wrote as an adviser in the Reagan administration, Roberts replied that he probably would 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 deduce anything from Kagan’s time in the Solicitor General’s Office or the Clinton administration, we’re left with her tenure as the dean of Harvard Law School and her authorship of 14 academic articles in law journals. Oddly, this means we’re supposed to judge Kagan not by the positions she took and decisions she made when she wielded political power but by the positions she took and decisions she made when she had no real influence on public policy. In any case, it is maddeningly hard to pin Kagan down based on her academic work, because it was mainly analytical and descriptive.
Given the dearth of evidence about Kagan’s legal views, the confirmation hearings were especially important as an opportunity to explore her judicial philosophy. But like her recent predecessors, Kagan offered little there beyond vague platitudes about the Constitution and rule of law. To comment on an issue she might have to rule on as a justice would be improper, she explained. When Sen. Tom Coburn (R-Okla.) asked Kagan her opinion of natural rights theory, she again demurred, explaining that her views on that subject were irrelevant to the work she would do on the Court. As my colleague Jacob Sullum quipped, Kagan “was happy to answer any question, as long as it was neither related nor unrelated to the positions she would take as a justice.”
Kagan was aspiring to one of the 10 most powerful positions in the U.S. government, where she will likely serve for decades, making profoundly consequential decisions about the balance between government power and individual rights. Yet we were not permitted even a glimpse into the values and principles that might influence those decisions.
There is a school of thought that says the president, having won an electoral mandate from the American people, should expect his nominees to be confirmed unless they are clearly unqualified. But even those who subscribe to that view must admit it becomes complicated by the fact that on the most important issues Kagan is likely to hear as a Supreme Court justice—issues related to executive power and the war on terror—Obama has abandoned the positions he advocated on the campaign trail. Yes, elections matter, but these aren’t the positions that won the election. And Elena Kagan was the person Obama hand-picked to argue his broken promises before the Supreme Court.
In a prescient 1995 article, Kagan complained that the confirmation process had devolved into “a vapid and hollow charade” in which “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 lamented “the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate.” By avoiding questions that would illuminate “the effect the nominee will have on the Court’s decisions,” she said, senators were shirking their “constitutional obligation to consider how an individual, as a judge, will read the Constitution.”
If we can’t look at her record in public office as an indication of how Kagan will balance government power with individual rights, we are left to judge her on this: Kagan knows the confirmation process is a charade. She knows it, she knows it’s wrong, and she chose to play along anyway.
The truth is, I have no idea what sort of justice Kagan will be when it comes to the rights of the accused, police power, or several other important issues. Neither does the U.S. Senate. It confirmed her anyway.
Radley Balko (firstname.lastname@example.org) is a senior editor at reason.