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Taking A Closer Look at Elena Kagan's Description of Confirmation Hearings as a 'Vapid and Hollow Charade'

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It’s Elena Kagan’s “wise Latina” comment. Just as Court watchers dug up a controversial, eight-year-old statement by Sonia Sotomayor last year, they have unearthed a law review article that Kagan authored in 1995 when she was a young law professor at the University of Chicago. In it, she criticized the Supreme Court confirmation hearings as they existed then (and now) as a “vapid and hollow charade,” in desperate need of reform to get at a nominee’s true judicial philosophy and views.

Now the statement is being thrown back at Elena Kagan as she prepares for her own confirmation hearings. Such is the nature of the modern confirmation process, when everything one has said or written can be found in the immense digital file cabinet that is the Internet (which is not always a bad thing, as Lat and Kash argue in a Washington Post piece today on myths about the confirmation process). A search of “Kagan and charade” in Google returned over 5,000 results this morning.

This seems like an opportune time to take a more thorough look at the 25-page book review from which the sound bite comes, and to highlight other passages that shed light on a 35-year-old Kagan’s opinion of the confirmation process. Not all of it casts a dark shadow when brought to light today. Regarding a nominee’s qualifications for the highest court, she presciently asked:

Must, for example …, a nominee have served on another appellate court — or may (as I believe) she demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind?

Perhaps by serving as Harvard Law School dean, and then as Solicitor General?

What other gems can be found in the 15-year-old document?

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Kagan reviewed Stephen Carter’s The Confirmation Mess for the University of Chicago Law Review in the Spring of 1995. Her article is on J-Stor and archived by SCOTUSblog [PDF].

In his book, Carter criticized the hearings as “the intellectual equivalent of a barroom brawl,” with special emphasis on Robert Bork’s confrontation with the Senate Judiciary Committee. Reviewing the book shortly after Justices Ginsburg and Breyer had been confirmed, Kagan wrote that its argument seemed antiquated:

[T]he real “confirmation mess” is the gap that has opened between the Bork hearings and all others (not only for Justices Ginsburg and Breyer, but also, and perhaps especially, for Justices Kennedy, Souter, and Thomas). It is the degree to which the Senate has strayed from the Bork model. The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy, muted, polite, and restrained-but all that good order comes at great cost.

Kagan does not argue in favor of a return to the ugliness of the Bork hearings:

Granted that not all subsequent confirmation hearings could, or even should, follow the pattern set by the Bork hearings, in either their supercharged intensity or their attention to substance. A necessary condition of both was the extreme conservatism of Bork’s known views, which made him an object of terror to some senators and veneration to others. It would be difficult to imagine hearings of the same kind following the nomination of Justice Ginsburg or Justice Breyer – two well-known moderates whose nominations had been proposed by senators on both sides of the aisle. To insist that these hearings take the identical form as the hearings on Judge Bork is not only to blink at political reality, but also to ignore the very real differences in the nature of the nominations.

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But she does argue that it is appropriate for the Senators to ask — and for nominees to answer — questions about specific cases and their Constitutional views:

[T]he 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. Like other kinds of legislative fact-finding, this inquiry serves both to educate members of the Senate and public and to enhance their ability to make reasoned choices. Open exploration of the nominee’s substantive views, that is, enables senators and their constituents 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.

Kagan argued then that the point of the confirmation process should be to find out “the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution.” Kagan thought this would be more easily and effectively accomplished with nominees with long paper trails, and that it was even more necessary for those without paper trails (now, like herself):

If questioning on substantive positions ever were to become the norm, the nominee lacking a publication record would have no automatic advantage over a highly prolific author. The success of a nomination in each case would depend on the nominee’s views, whether or not previously expressed in a law review or federal reporter.

She did not propose that senators could ask ANY question, or that they should be able to pigeonhole nominees into promising to rule in a certain way. But she did express a belief in the importance of a national conversation about the Constitution and its role in today’s society. She said that the Bork hearings “captivated and involved that citizenry in a way that, given the often arcane nature of the subject matter, could not have been predicted. Constitutional law became, for that brief moment, not a project reserved for judges, but an enterprise to which the general public turned its attention and contributed.”

The confirmation hearings in today’s form reinforce a legal elitism, which discourages “normal” people from engaging with our legal system. Senators, too, fall prey to this, wrote Kagan:

It is one reason that senators accede to the evasive answers they now have received from five consecutive nominees. It is one reason that senators emphasize, even in posing questions, that they are asking the nominee only about philosophy and not at all about cases-in effect, inviting the nominee to spout legal theory, but to spurn any demonstration of what that theory might mean in practice. It is one reason that senators often act as if their inquiry were a presumption-as if they, mere politicians, have no right to ask a real lawyer (let alone a real judge) about what the law should look like and how it should work. What has happened is that the Senate has absorbed criticisms like Carter’s and, in so doing, has let slip the fundamental lesson of the Bork hearings: the essential rightness-the legitimacy and the desirability – of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Kagan criticizes the Breyer and Ginsburg confirmation hearings as “lovefests.” She says senators should insist “on seeing how theory works in practice by evoking a nominee’s comments on particular issues-involving privacy rights, free speech, race and gender discrimination, and so forth-that the Court regularly faces.” If not digging into these issues and upholding its “constitutional obligation” to evaluate how a nominee will read the Constitution, the Senate may as well hand responsibility for the appointment of new judges to “some ABA committee” or “allow judges to name their own successors.”

A passage not being quoted by journalists, pundits, and bloggers is this one, which is perhaps most relevant for a nominee headed to the Senate this summer:

Neither do I mean to deride Justices Ginsburg and Breyer for the approach each took to testifying. 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?

Who would do anything different indeed?

People are certainly entitled to change their minds. Sotomayor had a similar reversal of opinion on her “wise Latina” remarks, telling the Judiciary Committee last year: “I want to state up front, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging.”

Kagan has already distanced herself from her book review from the last decade. These remarks are not being unearthed for the first time. They came up when Kagan was being confirmed for Solicitor General in early 2009. At that time, she remarked: “I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”

We imagine her views in 2010 are more in accordance with that statement from 2009, than her book review from 1995.

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