Confirmation Theater

Senate hearings on Supreme Court nominees keep the public as ignorant as possible.

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 (rbalko@reason.com) is a senior editor at reason.

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.

  • Fist of Etiquette||

    Is it too much to ask for a group of senators who have the courage to say to nominees that if you want a yea vote you must answer these questions?

    How about a jurist whose default position is to fall on the side of liberty? The U.S. Constitution is more than a framework for our government, the Bill of Rights makes its most important function that of a block to the state's attempts to tread on people's rights. It's like Kagan and so many of her fellow justices - like those in the other two branches - refuse to see that.

  • ||

    Senator Dipshit: "By the way, Ms. Kagan, have you read the constitution?"
    Kagan: "Senator, I can't answer that because my positions on the constitution wouldn't affect my job as a Supreme Court Justice."
    Senator Dipshit: "That's cool. No one really expects straightforward answers at a fucking senate confirmation hearing. It's just a drag and pony show anyways. YEA!"

  • ||

    It's just a drag and pony show anyways

    Intentional malapropism? Or typo?

  • ||

    get it?? get it?!!

  • Jordan Elliot||

    "How about a jurist whose default position is to fall on the side of liberty? The U.S. Constitution is more than a framework for our government, the Bill of Rights makes its most important function that of a block to the state's attempts to tread on people's rights. It's like Kagan and so many of her fellow justices - like those in the other two branches - refuse to see that."

    Is it refusal like you say or inability? As if the idea is either so out of date or so foreign that considering it is not withing their grasp.

  • ||

    I would actually settle for a jurist who STATES that their default position is to go along with the gubermint on everything.
    Nominee, "Like a big rubber stamp, I go stamp, stamp, stamping along" (sung to the tune of "big rubber ball")

    Than maybe, someone, somewhere might actually say, "Whoa....dude!Are they like suppose to allow everything?"
    Senate: "Uh, thats what I was doing...We're suppose to say 'no' sometimes???"

  • Suki||

    Good morning FoE, nice to see you.

    Alt-txt "I would rather be in my softball uniform"

    Good morning reason,

  • Almanian||

    "Chances of me giving a direct answer? This much...."

  • Suki||

    +1

  • ||

    "I'm crushing your head!"

  • Tim||

    Captions

    Ms Kagan can you describe for us what you saw after President Clinton opened his briefs'?

  • ||

    Just THIS MUCH more and I'll finally be a biological male

  • Fiscal Meth||

    Tokyo, come in Tokyo.

  • Rich||

    Since this seems to be "Education Awareness Week", here's my serious suggestion for reforming the confirmation proceedings. Get a high school civics (or whatever it's called these days) class to put together a Constitution Jeopardy board. On live TV, the nominee plays against the Chief Justice and the President. I leave the choice of show host to my esteemed colleagues at H&R.

  • dave b. ||

    I'll only watch if URKOBOLD hosts.

  • Slut Bunwalla||

    Were this actually instituted, Jon Stewart would end up hosting and the whole thing would be worthless.

  • PeeDub||

    I'd prefer a Match Game format.

  • ||

    Beltway Squares..? I think that's eventually what's going to happen with our judicial system anyways.

  • ||

    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.

    This is just plain dumb. If we can't take into account a nominee's past record, and senators can't ask any useful questions at the confirmation hearing, how the fuck does anybody know if the nominee is qualified or not?

  • Barack Obama||

    Let me be clear.

    Having won an electoral mandate from the American people, I wholeheartedly agree with the idea that all my nominees should be immediately confirmed.

  • Wegie||

    This is timely.

  • ||

    We were privileged to witness at least one Supreme nominee that wasn't shy, nor timid about revealing his record or judicial temperment. His name became a verb, an alternative to "fucked". And we missed out on perhaps one of the greatest Constitutional legal minds of the century, by design from the left.

  • Bill||

    As I recall, Bork had some loopy ideas and was no libertarian.

  • RockLibertyWarrior||

    Ever read Pork's oh I mean Bork's book "Slouching Towards Gomorrah" its full of stuff like banning Nine Inch Nails, pornography etc. See anything that offends religious conservative sensibilities should be banned and the constitution gives him the power to do that so he says. Bork is a Fascist pure and simple, he wouldn't have been a good supreme court justice at all.

  • ||

    It was a funny book, to say the least.

  • Barely Suppressed Rage||

    Although Bork did have some good ideas in terms of adhering to the original understanding of the Constitution, where the original understanding was unclear or questionable, he was very willing to simply go with majority rule - provided that majority was very conservative and Christian.

    He co-taught a class called Constitutional Law and Society during my third year in law school, and I took the class. It was interesting, for sure.

    Read Slouching Towards Gomorrah, or any of his other books. Recall his infamous explanation of the 9th Amendment, analogizing it to an inkblot that obscured the text so that nobody could know what it means. He essentially advocates simply reading it out of the Constitution and rendering it completely ineffective as a bulwark against legislative intrusion on personal liberties.

    In his books, he bitches about "rampand individualism" - meaning people should be expected to adhere more closely to legislated morality codes rather than being free to do what they would like to do.

    Bork is no dummy, and certainly in some respects would be much better than the wise Latina or Kagan, but in many other ways, he would have been a horror show when it comes to individual liberties.

  • ||

    Bork would say that we should not depend upon the courts to defend our liberty. I think he would have been fairly deferential to the legislative branch. But he would have been consistent about it. I don't think he would have intervened to correct policies he didn't like. He just wouldn't have intervened.

    Overall, since most of the problem in our courts is courts intervening to enforce their own political views on the public, Bork would have been an improvement. But, he would not have been perfect.

  • Old Man With Candy||

    Bork? You mean the guy who wholeheartedly supported pulling the antitrust shiv on Microsoft?

  • ||

    He supported it because that is how he read the anti-trust law. If you don't like the law, change it. Don't blame the judge who enforces it as written.

  • Robert||

    No, he supported it because he was hired to do so. Come on, you gotta let lawyers take the side of whoever's paying them, that's how they make a living.

  • Barely Suppressed Rage||

    He was big into antitrust law for much of his legal career. He has done a lot of scholarly legal writing about antitrust.

  • Ray Pew||

    In his books, he bitches about "rampand individualism" - meaning people should be expected to adhere more closely to legislated morality codes rather than being free to do what they would like to do.

    Exactly. After reading this book, I realized that Bork was no lover of liberty, but merely his version of conservative social norms.

    While the following link is from an anti-libertarian website, it is direct text from Bork's Slouching Towards Gomorrah, and shows his weak reasoning against libertarianism.

    http://world.std.com/~mhuben/bork.html

  • Barely Suppressed Rage||

    What? A blog entry about the SCOTUS judicial confirmation process that uses the word "theater" but omits the word "kabuki"?

    That just is not done!

  • ||

    I thought is was like testicles - sad, lonely, and kind of freakish when not seen with its partner.

  • Traditional Audience Member||

    The honorable BSR!

  • ||

    At least it ommitted bukkake. Cause that seemed like what it really was.

  • Patriot Mike||

    All nominees should be extended the courtesies and decorum that was shown to Judge Bork. Or Judge Thomas.

  • ||

    I hold the Republican Senators running this dog and pony show more accountable than anyone else. All they've yelled and bellyached about is Obama running rampant in the government. Well, here are two prime candidates to question vigorously before voting whether or not they should become nominees, and not only do they barely question them, they nominate them as well. Way to take a stand, red team.

    And their arguments are pathetic, usually saying that they want to be civil so that in the future when their guy tries to appoint someone it doesn't bite them in the ass. They forget that the Democrats already have one over on them from '87.

  • ||

    +1

  • ||

    Bork, at the very least, had read the Constitution. Of Kagan and Sotomayor I have my suspicions. Fascist indeed. Bork's main argument is almost always, unless expressly forbid or proscribed by the Constitution, the legislature reigns, if not supreme, at least deferentially, in making law. The unelected judiciary, not so much.

  • Dee||

    Damn that woman is pig ass ugly!

  • Invisible Finger||

    And you thought Clinton had bad taste!

  • robc||

    Is Seat 1 the least historically useful Supreme seat? I admit to not knowing a great deal about court history but between James Wilson and Brennan was there anyone important on there? I guess McReynolds was around forever but his name doesnt pop at me for anything important. Souter and Sotomayor seem perfect for this seat.

    Wilson
    Washington
    Baldwin
    Grier
    Strong
    Woods
    L. Lamar
    H. Jackson
    Peckham
    Lurton
    McReynolds
    Byrnes
    W. Rutledge
    Minton
    Brennan
    Souter
    Sotomayor

  • ||

    "My clitoris is this big, Senator."

  • Robert||

    To comment on an issue she might have to rule on as a justice would be improper


    That's what they've been saying for decades. What I'd like to know is when the (proper) idea that a candidate should not pre-judge a particular case or have an opinion about the parties to a case morphed into the much broader and more mysterious idea that the candidate should not express opinions about issues that could come up in a case? Not the particulars as they concern the parties, but the issues in general?

  • ||

    Senator Fresnodan: "Supreme court nominee ****, is torture constitutional?"
    Nominee **** "I can't comment on that, as you surely know it is an issue that could come before the court."
    Senator Fresnodan, "1st, stop calling me Shirley. OK, how about if you wrap a baseball bat in barber wire and glue broken glass to it, and than shove it in an orifice where the sun don't shine - is that constitutional?"
    Nominee *** "again, senator, these specific issues may be on the agenda, and I DON'T WANT TO PREJUDGE THE ISSUES."
    Senator Fresnodan: "Thank you for that most elucidating testimony. I have to get to the soiree put on by the bankers in which I trade my vote, worth trillions of dollars, for some really niffty coffee mugs, mouse pads, and pens that light up."

  • Eager Young Page||

    Senator, can you get me one of those pens that light up? That would be so cool!

  • Senator||

    Why yes - yes I can, Eager Young Page. But first I have this very hard problem I think you can give me a hand with.

  • ||

    You know I never knew what the big deal was with politician fucking their interns, pages, or copy machines. I mean, the only people that desperate to get into politics are people that are willing to sell their morals to the highest bidder, so why is it big news when they got busted having an affair with some ridiculously hot staffer? I mean it's about as shocking as finding a bunch of unionized auto guys tossing back 40z and toking up on their lunchbreak.

  • Fiscal Meth||

    Seems to me that her refusal to answer any of those questions is an admission that she does not acknowledge any constitutional principles and views the constitution as squishy or even disposable. By saying it wouldn't be prudent to give her legal opinion without the details of the case, she's saying that it would be prudent to set legal prescedent for all future cases based on the details of a specific case. I don't see why that alone doesn't disqualify her.

  • Supreme Court Nominee||

    The case, like the constitution, are hypothetical.

  • Fiscal Meth||

    Congratulations. You're confirmed.

  • ||

    In any case, it is maddeningly hard to pin Kagan down based on her academic work

    Greased-up pigs are like that...

  • ||

    "Because there is little difference between Democrats and Republicans in their fondness for increasing police power.."
    Actually, if we had a "conservative" who stated right out that he supports the police shooting anybody who they suspect is guilty of anything, that would actually mean something. You could disagree with it. The nominee might even be compelled (GASP!!!) to state that people are innocent until proven guilty.

    Or an "liberal" who thought that health reform means the gubermint can require jumping jacks every morning, maybe the nominee could point out that gubermint power is not unlimited, and that he/she would find that unconstitutional.
    HA HA HA HA HA...I hurt myself laughing, like any of these nominees would ever endanger getting themselves a cushy job.
    The question I would ask a supreme court nominee, "is there any principal that is more important to you than getting on the Supreme court?"
    Supreme court nominee, "Yes"
    Fresnodan "what is it"
    Supreme court nominee "I can't tell you because it may come up in a future court case"

  • ||

    The level of thinking among Reason commenters is extraordinary. You all deserve a pat on the back. The future of libertarian and Libertarian success is well-guarded in you.

  • Rich||

    Thanks, Lloyd! Obviously you have a great mind yourself.

  • ||

    I bet your good looking and have a ginormous penis...
    Uh...pretty much like all us Reason commenters...

  • Barely Suppressed Rage||

    Stated without a HINT of sarcasm, too!

  • ||

    To comment on an issue she might have to rule on as a justice would be improper

    Why? What's improper about it? I've never understood this, or why Senators let the nominee get away with it.

    I like the approach above:

    "Ms. Kagan, if you don't give a responsive answer to this question, I will vote against your appointment. I cannot exercise my Constitutional duty to "advise and consent" unless I can give informed consent."

    At the end of the hearing:

    "I'm sorry, Ms. Kagan, but your refusal to answer our questions in any meaningful way today means I will be voting against your nomination. I understand you have two more days of hearings, but I have other things to do now that I know what my vote will be."

  • Rich||

    I've never understood this, or why Senators let the nominee get away with it.

    Ditt, I mean, I agree. It's like telling a prospective employer at a job interview, "I'm sorry, but I might actually have to handle that situation if you hire me, so I can't tell you what I would do or even offer an opinion about it."

  • ||

    From a previous Reason post on taping police officers, on the public payroll, doing their job in public, on a public stree, ...Oh, and enforcing a public law (kind of redundant, what law isn't public, but I like to overstate my points)
    :
    Moreover, if Pitts had ruled the other way, Graber would have violated an ambiguous law, broadly interpreted in a way that most everyone else in the state (and for that matter the country), including the attorney general, believed to be incorrect. That is, he would have had no reason to believe that what he was doing was illegal.

    Might be a good question for a Supreme court nominee.
    O yeah, the senators want to have an answer...than they might have to reveal wheather public empolyees can be identified.

  • ||

    We know the SCOTUS confirmations are a joke, but what does this mean for lower court nominees? Are they just as poorly vetted?

  • ||

    In Texas, most judges are elected and run on a party platform "John Worth: Republican for Judge" or some such. Really defeats the purpose, I thought.

  • ||

    How can you write this story without talking about the legacy of Bork? Instead, you want to smear a lawyer with the values of her clients? I don't think many criminal defense attorneys will back you up.

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