Kagan v. Senate Judiciary Comittee

I can’t recall any Supreme Court nominee having written in advance on the nature of confirmation hearings, prescribing what that process should entail. (That may say more about my memory than reality.) In a 1995 book review (62 U.Chi.L.Rev. 919), Kagan asserted that “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.” Specifically, she argued that confirmation hearings should address a nominee’s judicial philosophy as well as how this philosophy might be applied 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.

While this might be the ideal in a confirmation hearing, it typically fails to achieve that level of forthright and informative discourse. The president’s political opposition, whether it be in the Senate or among the advocacy leaders, is too intent on seizing any and all opportunities to frame responses into opposition bullet points that can excite public opinion which, in turn, can be leveraged to their financial and political advantage. Cognizant of the opposition strategy (in part because they’ve been there and done that) the nominee’s supporters are too intent on limiting the discourse so that it cannot generate sufficient fodder to arouse controversy and substantial opposition in the public sphere, perhaps jeopardizing the nomination.

The result is a rather strange dance of politics (closely resembling a loose canon), in which both sides refuse to admit that the process of evaluating Supreme Court nominees is driven by politics, except to note with some disdain that the “other side” is playing politics. In reality, of course, they are all engaged in politics, one strategy of which is to claim that you are not being political. The mere fact that the president gets to choose the nominee and the Senate gets to confirm or reject makes it political. There’s nothing wrong with that.

By admitting its political nature, the Senate and the nominee could actually begin to engage in the type of dialogue that Kagan envisioned for the process. Senators could oppose the nominee because they disagree with her political philosophy or her take on several key issues that have characterized the Court’s stormy history. Instead, we’ll have to hear the opposition assert that her lack of judicial experience is sufficient grounds for opposition, when apparently it was not for Louis Brandeis, Felix Frankfurter, Earl Warren, or William Rehnquist. Of course, those 19 months for Clarence Thomas was all that was needed to put him over the top, I suppose. We’ll also hear her characterized as a judicial activist, though only by those unable to see the activism of Scalia, Roberts, or others on the conservative wing of the Court.

What we need is dialogue that will permit us to perceive that this nominee has the intellect, the understanding of and ability to deal with significant constitutional issues, the integrity to faithfully interpret the constitution and laws as they understand them, and some sense about what that understanding is. As the number of closely divided Court decisions reveals, there are distinctly different points of view on any number of these principles. And it’s OK for a senator to decide his or her vote on agreement or disagreement with the nominee on this basis.