Morning Bell: Will Elena Kagan Defend the Rule of Law?

Conn Carroll / June 28, 2010

The Senate Judiciary Committee will begin its hearing today on the nomination of Elena Kagan to be the next Associate Justice of the Supreme Court of the United States. Kagan is no stranger to the confirmation process; in fact, she devoted one of her few academic writings entirely to the subject, writing:

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.

Kagan’s law review article specifically criticized recent confirmation hearings as “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” Instead, Kagan advocated that senators 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.” Kagan even suggested that nominees with thin records (and Kagan’s record can definitely be considered “thin,” since she has no judicial experience, few academic writings, and virtually no litigation experience prior to her current post as Solicitor General), should face a heavier burden when answering senators’ questions. So what “substantive issues” should senators press Kagan on to see how her “theory works in practice”? (more…)