Posted by Jonathan Adler:
Kagan Advances Without Answering Questions:
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236538896
The Senate Judiciary Committee favorably reported the nomination of
Elena Kagan to be Solicitor General by a vote of 13-3. Three
Republicans voted against her nomination, and three more abstained,
due to Kagan's [1]failure to answer questions about her views on
various cases and legal questions, despite having written previously
that nominees should be more forthcoming than they have been in the
past. The [2]Washington Post's Robert Barnes reports:
She once wrote that nominees should answer questions from senators.
And in no uncertain terms, either. Reviewing Stephen Carter's book
"The Confirmation Mess" for the University of Chicago Law Review in
1995, Kagan opined that "when the Senate ceases to engage nominees
in meaningful discussion of legal issues, the confirmation process
takes on an air of vacuity and farce."
She thought that executive branch nominees, "for whom
'independence' is no virtue," really deserved to be grilled.
Those statements apparently are no longer operative. . . .
Kagan, the dean of the Harvard Law School, told the lawmakers she
had endeavored to answer their questions but acknowledged: "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." . . .
"I do not think it comports with the responsibilities and role of
the solicitor general for me to say whether I view particular
decisions as wrongly decided or whether I agree with criticisms of
those decisions," she repeatedly said.
For what it's worth, I think Kagan is more correct now than she had
been in 1995. While I believe she should have been more forthcoming in
responding to the Committee's questions -- some prior SG nominees
certainly gave more complete answers to equivalent questions -- I also
think it's long past time to retire the idea that the problem with
confirmation hearings is that nominees are not forced to give more
detailed answers about their personal legal and political views.
Insofar as Kagan's reticence was prompted by concerns about how her
answers could play out should she be nominated to the bench, it is
further reason to abandon the Senate's ideological inquests. In my
view, judicial confirmation hearings should focus on qualifications
and temperament, rather than judicial ideology. I suspect Kagan has
more sympathy for that view now than she might have in the past.
References
1.
http://bench.nationalreview.com/post/?q=ODg5OTRiZTAzMDU5YzJjMzc3MWFiOWRjZjlhZjc0ZTU=
2.
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/05/AR2009030503226.html
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