Since the epic 1987 struggle over the ideologically outspoken Supreme Court nominee Robert Bork, a troubling unwritten rule has evolved against candor in the confirmation process. Two weeks ago, for example, Sen. Richard Durbin, D-Ill., said he was frustrated with “asking straightforward questions [of nominees], and being told, ‘Well, I can’t give you an answer because then I’d be suggesting how I would rule from the bench.’”
As a law professor at Harvard U., Elena Kagan wrote solely on uncontroversial subjects. And unlike all our sitting Justices, she has never been a judge. No one knows her views on important issues. For President Barack Obama, no doubt this was a conscious choice. After all, the less the opposition knows about an otherwise well-qualified nominee, the harder it is to block her without appearing crassly obstructionist. But while the tactics are understandable given the political environment, the fact of the matter is that the whole situation has become ridiculous.
Kagan should have to candidly answer specific questions about her views. The Atlantic’s Michael Kinsley put it well in a recent column: “It is absurd to choose a Supreme Court Justice on the basis of who we know the least about … Neither the president nor the Congress should have to buy a pig in a poke.” So how can we, as a nation, avoid a life-tenured blind date? A two-step solution comes to mind. First, Kagan will have to open up. Second, conservatives will need to ask the right questions.
Granted, certain features of our judicial confirmation process, such as the threat of filibusters and endless, often unfair probing by the opposition, make this first stage somewhat unlikely. But there are a few reasons why we might hope for candor — from Kagan especially. First, in a 1995 article, Kagan derided the modern judicial confirmation process as “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” Furthermore, considering her overwhelming qualifications (acknowledged on both sides of the aisle), any serious conservative campaign to block Kagan looks destined to fail. Kagan could use her considerable wiggle room to engage in frank, intelligent dialogue and live up to her own standard.
Assuming Kagan decides to put her money where her mouth is, conservatives would be remiss if they didn’t engage in a bit of tough questioning to thoughtfully fill in the blanks on crucial unresolved issues. What is the unique point of view Kagan would add to the bench? How is she likely to vote in key cases? What direction will she take the institution of the Court? Specifically, conservatives could press Kagan on the vagaries of free speech, same-sex marriage, the use of foreign laws, gun rights or cases like Citizens United or Planned Parenthood v. Casey.
Substantive grilling cannot be overemphasized. There is a certain unhelpful line of questioning that conservatives frequently pursue, which ought to be replaced. Sen. Jeff Sessions, R-Ala., offered an example in a recent Washington Post column: “The American people will want to know whether [the President] is choosing someone who is committed to the text of the Constitution and the vision of the Founding Fathers.” This type of question practically begs for an overbroad, facile, content-free answer.
Seeking to place a nominee on either side of a hard and fast line between “activist judge” and “follower of the Constitution” is a fool’s errand. It is unrealistic to expect Justices to robotically apply the strict letter of our founding document. This is not to say that rulings should not be well-reasoned and firmly grounded in precedent, statute and the Constitution — to rule purely on the basis of social preferences would certainly erode the legitimacy of the Court. But legal ambiguity, especially at the highest level of our judicial system, means that every Justice must employ at least some discretion. And in any case, Kagan would have to be a moron not to answer that she plans to “follow the Constitution” and “rest her rulings on a strong legal foundation.”
Finally, conservatives have legitimate concerns about the unprecedented power that U.S. judges can wield. Pointing out the relative merits of conservative jurisprudence in a forum as public as Kagan’s confirmation hearings may help educate voters in advance of November’s midterm elections.