Kagan Critique of Process Intact

It appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently.

What is the rationale for not responding to questions on issues that might come before the Court? David Souter may have stated it best in his confirmation hearing:

If the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge, the people who come before him can have a fair hearing . . . . a fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take.
Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. . . . can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?

In addition to the argument that nominees should avoid any appearance of having prejudged important constitutional questions, Senator Hatch has also argued that the Senate should avoid any “ideological inquisition” that might stir up political partisanship concerning the nomination. Guess which nomination that was, Bork or Kagan?

The argument in favor of the kind of exchange that Kagan advocated in her 1995 book review article is the right of the people and the need of the senators to know what kind of justice this nominee is likely to be. In 1981, Senator Denton told nominee O’Connor, "It is my earnest hope that your response will be neither broad nor bland, because I will base my single vote on those responses." Nineteen of Denton’s 23 questions dealt with abortion, and his futile attempt to draw O’Connor out on the topic would have produced a “No” vote from him, as promised, except he yielded to pressure from the Republican leadership and abstained in the committee vote and voted affirmatively in the full Senate.

The Senate has long ago reached a point of reasonable acceptance regarding the suitability of questions pertaining to a nominee’s constitutional and judicial philosophy. It has not yet reached a point at which the burden of proof has been laid on the nominee and the nominee’s supporters. That likely will not happen until some senator, some day, stands up to vote “No” on a nominee because of the nominee’s refusal to be forthcoming to questions from the Committee. Senator Specter may be ready to take that step.