How many of her own political and legal views will Elena Kagan reveal during her appearance before the Senate? We may not yet know, but on this issue there is a paper trail. Here is Kagan, writing in the University of Chicago Law Review back in 1995:
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. 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 rea- soned choices. Open exploration of the nominee's substantive views, that is, 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.
This open exploration by Senators includes:
the insistence 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.
These were Professor Kagan's views once upon a time; we shall see if they remain so.
"These were Professor Kagan's views once upon a time; we shall see if they remain so."
BORING!
Of course she will run away from her ivory tower maundering. Only an academic could have written such nonsense and be taken seriously -- unless, of course, she just has a bone-dry sense of humor, in which case, kudos to her.
A better post would ask people to guess at what bullshit she will offer to explain why she will under no circumstances specify her actual views on any issue of substance (without committing the political gaffe of saying "I won't answer that because I would rather be confirmed, Senator.")
First possible explanation: "Oh god, I was so high when I wrote that. But that was how I rolled in the nineties, you know."
Second explanation: "Eventually, I realized that neither the public nor the Senate actually thinks rationally about constitutional issues, so the whole idea of 'enhancing their ability to make reasoned choices' was revealed to be an obvious waste of everybody's time. Whew, huh? But I would be, like, totally happy to answer any question you might want to ask about my immense love for this fine country or my boundless respect for the Senate and the Senate's crucial constitutional role in filling up dead air time on CSPAN."
Posted by: Nemo | May 10, 2010 at 10:59 AM
This is kind of peripheral, but I was irritated when I read a quote from the LA Times online (http://www.latimes.com/news/nationworld/nation/la-na-kagan-nomination-20100511,0,7029735.story) noting that President Obama described Kagan as a "trailblazing lady". I may be overly sensitive here, and she may well be a "trailblazing lady", but would it have been so difficult for the president to refer to her as a "person" or a "lawyer" rather than a "lady"?
Posted by: Jacqueline Lipton | May 10, 2010 at 11:00 AM
Well, that was quick.
http://dailycaller.com/2010/05/10/elena-kagan-no-longer-thinks-supreme-court-nominees-should-have-to-answer-direct-questions/
Posted by: Nemo | May 11, 2010 at 10:38 AM