Confirmation hearings for Elena Kagan will take place before the Senate Judiciary Committee this week. There is little doubt she will be confirmed, and even less doubt that she is intellectually capable to serve as a Justice on the United States Supreme Court. The real question is, I suppose, why we are having confirmation hearings at all. They are, as Kagan said in a book review written fifteen years ago, a farce.
The federal Constitution says says that the President can nominate a candidate for the Court, but that the nominee must be confirmed by the Senate. This is what lawyers call black letter law. The rule is written in terms so clear and unambiguous that no two lawyers of ordinary skill and training can disagree about its meaning. Call this part of the cookbook Constitution.
But most of the cases finding their way to the Supreme Court involve matters of interpretation. The recipes for these cases consist of conflicting legal doctrines and social policies often requiring that difficult choices be made. This murky application of doctrine and policy choice requires judges to make judgments. Only in the playscape of current confirmation hearings do we pretend otherwise. The Constitution lives, whether we feed it with honest commitment to principles plainly stated or hide our prejudices with less than honest sleights of hand.
Here are some questions and principles I'd like to see explored with Elena Kagan. I doubt any Senator has the stomach for these questions for the simple reason that they require more intellectual honesty than is typical among members of posturing political class.
1. What case that you have handled as a member of the bar has most challenged you intellectually and morally? The follow up to this question should be intense. I want to know about what she thinks a lawyer's role is in our society. More to the point, I want to know what she thinks the role of the rule of law is in our society.
2. Tell us about a case you refused to handle or from which you withdrew because it conflicted either with your personal or professional commitments. If she cannot identify one, ask her how that is possible. Has she taken only cases she agrees with? If so, does she view the law as a means of advancing her own or her clients' interests? If she has refused to handle a case on a matter of principle, what will she do if called upon decide a case involving the very principle should could not support?
3. What weight are we to give the intentions of the those who crafted the Constitution? If any weight, why do their opinions matter at all given the passage of centuries since the founding?
4. Respond to the following proposition: The Federalist Society is merely a social reaction of the intellectual losers in the debates that yielded the New Deal and Great Society. Its doctrinal reach extends not to the founding era, but reaches no further than the 1920s and the 1930s.
5. What role do you think candor should play in the confirmation of a judge?
6. Because you value candor, please respond candidly to the following questions. If you cannot, or will not answer these questions, then shouldn't we regard you as lacking in candor?
a. Was Roe v. Wade correctly decided? Why?
b. Was Citizens United correctly decided? Why?
c. Should our Supreme Court pay deference to emerging canons of international law? Why?
d. What role do you believe the Ninth Amendment should play in Supreme Court jurisprudence? Why?
7. There are no trial lawyers on the Supreme Court. Do you think a trial lawyer on the court would strengthen or weaken the court's role?
Frankly, I do not support her nomination to the Court. I suspect Kagan's answers to these questions would be as vapid as the banter at a Harvard Law School tea party. Perhaps the questions are themselves vapid. Kagan lacks the qualities I admire in a lawyer: Courage in the face of adversity; creativity when called upon to serve in difficult situations; and the humility that comes of living in the shadows casts by the law's great institutions. She may profess humble social origins, but her career has had a simple trajectory: She was to the manor born.
This nominee lacks courtroom experience; her defining characteristic seems to be lifelong sublimation of every impulse toward the master passion to advance to the Court. It is for this very reason that she is something of a cipher. She's played it safe for a lifetime, hoping for the chance tomorrow gives to sing for a lifetime appointment on the nation's highest court.
I would much prefer a candidate with a heart broken by a client's sorrow. The current Court is packed with powerful men and women who have lived apart from the mainstream of suffering humanity for so long that their jurisprudence is antiseptic and cold. Elena Kagan seems the coldest of the pack.
Throw this fish back, I say. Let's have a confirmation hearing where the Senate insists that honest questions are honestly answered. Go ahead, ask this nominee about issues that are likely to arise before the Court. If she pretends to be unable to answer now, ask her how she'll be able to answer later. If she claims it would not be appropriate to answer a question she may be called upon to decide, refuse to confirm her. I have very little idea what this mannequin is stuffed with. Take the gloves off and engage in honest probing.
Or will it simply be politics as usual?