By Carole on May 10, 2010
It's official. President Barack Obama has nominated Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. Most experts are anticipating a smooth confirmation process leaving just one big question: Will Ms. Kagan's decidedly negative comments about Supreme Court confirmation hearings have any affect on her own?
In 1995 while a professor at the University of Chicago Law School, Ms. Kagan wrote that such hearings had become "a vapid and hollow charade" because nominees are not forced to say what they think about disputed issues such as abortion, affirmative action and privacy. She went on to say it is "an embarrassment, [that] senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." (source)
Nominees to the high court have, in the recent past, avoided directly answering questions that would disclose their views citing the possibility of future cases regarding such issues and claiming it would be improper for them to discuss their personal positions. But that seems to have been Ms Kagan's point. Do the people (including those on the Senate Committee asking the questions) deserve those answers in order to make an informed decision on confirmation?
It's not an easy question as there are solid arguments on both sides. But Ms. Kagan weighed in on the side of full disclosure when she wrote those words in 1995. The issue came up last year during the Senate confirmation hearing for her current position as Solicitor General. At that time she responded to questions about her earlier comments by saying, "I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought."
Now she is the one abut to be in front of the American people. Do we deserve to know what she means and thinks? Without any prior judicial record or breaking with current tradition (and her own words), we will have very few clues about what kind of Justice she would make. Will Ms. Kagan stay true to her previously stated beliefs? I expect another "vapid and hollow charade".
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