NPR logo In '95, Kagan Thought Nomination Process Was A 'Charade'


In '95, Kagan Thought Nomination Process Was A 'Charade'

A younger Elena Kagan wrote in 1995 that confirmation hearings for Supreme Court nominees had become a "vapid and hollow charade" as senators allowed nominees to stonewall when asked questions about their judicial philosophies — questions that might offer clues to how those nominees might decide cases in the future.

"The kind of inquiry that would contribute most to understanding and evaluating a nomination," she wrote in the University of Chicago Law Review, is "discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues. ... I mean such things as the judge's understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory."

"The current 'confirmation mess'," she continued, "derives not from the role the Senate assumed in evaluating Judge (Robert) Bork, but from the Senate's subsequent abandonment of that role and function. When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."

Fourteen years later, as a nominee to be Solicitor General, Kagan thought differently — a sign that she may behave much like the previous nominees she said in '95 had been stonewalling. Now, as President Barack Obama's freshly announced nominee to the Supreme Court, it's very likely she'll be asked again about that 1995 law review piece and whether she thinks she should be grilled fairly thoroughly by senators and not allowed to "stonewall" when it comes to answering.

Here's how she addressed the issue last year when asked about it by Sen. Orrin Hatch, R-Utah, who will get another chance to bring it up — if he wishes — during her upcoming confirmation hearings. As you'll hear, Kagan, now 50, said "I'm not sure sitting here today I would agree" with what she wrote in 1995. She was then, Kagan said, a staffer on the Senate Judiciary Committee and was "feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant. ... (But there) has to be a balance. The Senate has to get the information that it needs. But as well, a nominee ... has to be protective of certain kinds of interests." The discussion of her '95 view begins about 15 seconds into this short clip:

The complete video of Kagan's 2009 confirmation hearing is here.