Kagan: No Answers? No Vote
Elena Kagan will be confirmed as the next justice of the United States Supreme Court. But I wish the Senate would withhold approval. If she believes it is inappropriate to comment on the issues that might come before her, then the Senate should respond by doing likewise: Refusing to vote on a candidate who can’t respond to simple questions fairly put. The confirmation process is, as Kagan so aptly noted long ago, vapid. It is also a farce. The president nominates a candidate with whom he is comfortable, and then sends the candidate along to the Senate for confirmation. But the current manner of conducting these hearings transforms them into a meaningless beauty contest. Just how composed can a candidate remain while saying nothing at all? Judged by the standards of the genre, Kagan is a success. She sat for several days before the Senate a stoic image, expressing little emotion as she was both praised and derided for her career as a, er, um, lawyer. Forgive me my arrogance, but despite her brilliance, her law review articles, her professorships, her stint as dean at the Harvard law school, her role as policy wonk in the Clinton White House, and her brief tenure as Solicitor General, the woman is a stranger to the courtroom. I would not feel confident sending her to handle a misdemeanor charge on behalf of a client. Yet up, up, up she climbs the legal ladder. She climbs without her feet ever really touching ground. Every effort to get her to describe how she feels about such vital issues in our time as the reach of government power in the so-called war on terror, or whether all Americans, regardless of libidinal compass, should enjoy meaningful equal protection of the law, was met with the same vacuous stonewalling now typical of the hearings. It would be inappropriate to answer these questions, she says, because she might be called upon to decide them.
The wonder of it is that the Senate is complicit in this mealy mouthed gibberish. Senators sat dumb struck in something like awe, treating the candidate as though she were an oracle, a goddess who must be propitiated lest offense yields distant and dangerous scorn. Supreme Court justices are not high priests; rulings aren’t oracles. Decisions by the Supreme Court are little more than judgments about how best to reconcile the competing imperatives reflected in the cases and controversies finding their way into the nation’s courts. We look to the Supreme Court to settle the law in areas where pragmatic legal doctrines collide, where the past provides little guidance to what the future should hold. It is not asking too much of a candidate for this lifetime seat on the nation’s highest tribunal to tell us what commitments they bring to the Court. We are entitled to more than the empty promise to be fair and impartial. This is little more than a pre-printed wedding vow. By mystifying the confirmation process with empty form we trivialize the law and show scorn for the American people. What message does the silly chatter send? That the law is deep, mysterious, its ways not capable of being charted, much less understood, by the ordinary people who must simply trust the wisdom of a justice and then obey her commands. That’s silly. The law is merely applied principle. Legal doctrine, like Senatorial custom, changes. It is too much to hope this time around that the Senate’s conception of its advice and consent will be transformed into something meatier. But I hope at least a handful of Senators will refuse to vote yea or nay on Kagan’s confirmation for the stated reason that, the candidate having said next to nothing, they have nothing on which to vote. Reprinted courtesy of the Connecticut Law Tribune.