The contrast between Elena Kagan's current stance regarding which questions a judicial nominee can safely answer and the views she expressed on the subject in a 1995 book review, highlighted on Monday by Radley Balko, has been widely noted in print and TV coverage. But the review (PDF), a 25-page essay published by The University of Chicago Law Review, is well worth reading in full, because it provides a cogent, thoughtful, and eloquent critique of the "vapid and hollow charade" in which Kagan is currently participating.
Kagan takes issue with Yale law professor Stephen Carter's argument, in his book The Confirmation Mess, that one of the main problems with the Senate's examination of judicial nominees is that it focuses too much on their judicial philosophies and positions on contentious legal issues. Carter's paradigmatic example is Robert Bork's 1987 confirmation hearings, where the appeals court judge spoke candidly and at length about his approach to constitutional interpretation. The Senate rejected Bork after his opponents mounted a hyperbolic, vituperative campaign against him, branding him as a dangerous extremist (they might have been right about that).
But as Kagan notes, confirmation hearings before and since then have been congenial affairs where the nominees evade questions about their views on legal matters and senators let them. She offers amusing examples from the hearings on Clinton nominees Ruth Bader Ginsburg and Stephen Breyer:
Justice Ginsburg's favored technique took the form of a pincer movement. When asked a specific question on a constitutional issue, Ginsburg replied (along Carter's favored lines) that an answer might forecast a vote and thus contravene the norm of judicial impartiality. Said Ginsburg: "I think when you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because…that scenario might come before me." But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. Again said Ginsburg: "I prefer not to…talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case."…
Justice Breyer was smoother than Justice Ginsburg, but ultimately no more forthcoming. His favored approach was the "grey area" test: if a question fell within this area—if it asked him to comment on issues not yet definitively closed (and therefore still a matter of interest)—he must, he said, decline to comment. Like Justice Ginsburg, he could provide personal anecdotes—the relevance of which were open to question. He could state settled law—but not whether he agreed with the settlement. He could explain the importance and difficulty of a legal issue—without suggesting which important and difficult resolution he favored. What he could not do was to respond directly to questions regarding his legal positions. Throughout his testimony, Breyer refused to answer not merely questions concerning pending cases, but questions relating in any way to any issue that the Supreme Court might one day face.
For further example of such evasions, you can watch Kagan's own confirmation hearings. As Sen. Tom Coburn (R-Okla.) complained to The New York Times yesterday, "She's doing exactly what she criticized other nominees for doing. She's dancing." And it is worth emphasizing that Kagan did indeed criticize (and not merely describe) this approach to confirmation hearings, in what for her are very strong terms:
If recent hearings lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what Carter describes: not that the Senate focused too much on a nominee's legal views, but that it did so far too little. Otherwise put, the current "confirmation mess" derives not from the role the Senate assumed in evaluating Judge Bork, but from the Senate's subsequent abandonment of that role and function. When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.
Likewise, Kagan was quite clear in her description of how confirmation hearings should be conducted (emphasis added):
The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution….
The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court's decisions….
The Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; 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….
Open exploration of the nominee's substantive views…enables senators and their constitutuents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee); and the process used in the Senate to serve the intertwined aims of education and evaluation ought to reflect what most greatly matters….
Indeed, contrary to Carter's view, the President and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument.
Kagan considered and explicitly rejected the argument that "judicial independence" precludes this sort of inquiry (emphasis added):
The judicial independence that we should focus on protecting resides primarily in the inability of political officials, once having placed a person on a court, to interfere with what she does there….
Some kinds of questions, as Carter contends, do pose a threat to the integrity of the judiciary. Suppose, for example, that a senator asked a nominee to commit herself to voting a certain way on a case that the Court had accepted for argument. We would object—and we would be right to object—to this question, on the ground that any commitment of this kind, even though unenforceable, would place pressure on the judge (independent of the merits of the case) to rule in a certain manner. This would impede the judge's ability to make a free and considered decision in the case, as well as undermine the credibility of the decision in the eyes of litigants and the public. And once we accept the impermissibility of such a question, it seems we have to go still further. For there are ways of requesting and making commitments that manage to circumvent the language of pledge and promise, but that convey the same meaning; and these scantly veiled expressions pose dangers almost as grave as those of explicit commitments to the fairness, actual and perceived, of the judicial process. But we do not have to proceed nearly so far down the road of silence as Carter and recent nominees would take us—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. There is a difference between a prohibition on making a commitment (whether explicit or implicit) and a prohibition on stating a current view as to a disputed legal question….
A nominee can say a great, great deal before making a statement that, under this standard, nears the improper. A nominee, as I have indicated before, usually can comment on judicial methodology, on prior caselaw, on hypothetical cases, on general issues like affirmative action or abortion. To make this more concrete, a nominee can do…well, what Robert Bork did. If Carter and recent nominees are right, Judge Bork's testimony violated many times a crucial norm of judicial conduct. In fact, it did no such thing; indeed it should serve as a model.
But not for Kagan herself. Yesterday she dodged questions about gun rights, abortion, Bush v. Gore, and the Miranda rule, saying she did not want to "provide some kind of hints" about her views on matters that might come before the Court. Regarding the position she staked out in 1995, she said:
I think that that was wrong….It wouldn't be appropriate for me to talk about what I think about past cases—you know, to grade cases—because those cases themselves might again come before the court.
How can we explain this reversal on an issue that Kagan said was of such vital importance that her current stonewalling is preventing senators from meeting their constitutional obligations? Kagan herself, discussing the performances of Ginsburg and Breyer, offered a few suggestions:
I am sure each believed (along with Carter) that disclosing his or her views on legal issues threatened the independence of the judiciary. (It is a view, I suspect, which for obvious reasons is highly correlated with membership in the third branch of government.) More, I am sure both judges knew that they were playing the game in full accordance with a set of rules that others had established before them. If most prior nominees have avoided disclosing their views on legal issues, it is hard to fault Justice Ginsburg or Justice Breyer for declining to proffer this information. And finally, I suspect that both appreciated that, for them (as for most), the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress?