Kagan In 1995: Judicial Nominees Must Answer Questions


The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade," a Chicago law professor complained, because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action and privacy.

It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Justice Clarence Thomas won confirmation, she said, even "after his substantive testimony had become a national laughingstock."

These comments from a 1995 article are likely to be a focus of the next Supreme Court hearing if their author Elena Kagan emerges as President Obama's nominee. White House aides say the president is near making a decision, perhaps as soon as Monday.

(Emphasis supplied.) Kagan was absolutely right in 1995 and should she be the nominee, then it is time to elevate the confirmation process -- apply the standard Kagan caled for in 1995. The Senate has the right and should demand answers from judicial nominees. If the nominee refuses, then the Senate should not confirm.

Speaking for me only

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    It is some comfort to me (5.00 / 2) (#1)
    by andgarden on Sat May 08, 2010 at 10:09:26 AM EST
    that she thinks Thomas's testimony (and by implication, Thomas himself) was a national laughingstock.

    As the saying goes (5.00 / 2) (#2)
    by MO Blue on Sat May 08, 2010 at 10:18:33 AM EST
    That was then and this is now.

    While I agree with this statement,

    It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues."

    I fully expect the Senate confirmation hearings will continue to be the same political sham.

    The next "wise Latina" meme for (5.00 / 1) (#3)
    by oculus on Sat May 08, 2010 at 11:31:06 AM EST
    the GOP Senators on Judiciary Committee.

    It will definitely haunt her (none / 0) (#7)
    by abdiel on Sat May 08, 2010 at 12:22:14 PM EST
    when they ask for her opinions and she gets hammered for it.

    Her statement is a poor one. Justices are supposed to decide the case in front of them, not use prejudged positions on certain issues.

    Turning the confirmation into finding a series of outcomes rather than trying to sort through her principles is ridiculous, IMO. Her solution is worse than the problem, and it enhances rather than mitigates the lockstep politics from both sides.


    Yeah (5.00 / 2) (#4)
    by squeaky on Sat May 08, 2010 at 11:40:30 AM EST
    And the GOP Senators should stop lockstep politics in refusing to confirm any Democratic nominee based on hot button subjects.

    Or the GOP should adopt the same bar, that Democratic Senators used to confirm Thomas, Scalia, Alito, and Roberts.

    And to assume that if the Democrats "play fair" this time around the GOP will "play fair" when they get to choose or appoint Judges, is a pipe dream, imo.

    But on principal I agree that the advise and consent period should be, among other things, asking and answering pertinent questions, not the charade that it has become.

    Too bad that in the years since Kagan (5.00 / 4) (#5)
    by Anne on Sat May 08, 2010 at 11:47:14 AM EST
    made that statement she has done little to provide a record of where she, herself, stands on much of anything.

    Looks to me as if she has played it safe to ensure career advancement and her own ambition, saying and writing as little as possible to convince as many people as possible that she should be promoted up the chain.  Someone like this is going to to have a very difficult time holding her own on the Court or being an advocate for "progressive" legal positions; she is less a consensus builder than she is a "pleaser," and the Justices will eat her for lunch.

    I can picture Diane Wood not just standing up for her record in a confirmation hearing, but persuading the more conservative members of the Committee to see things more her way; since Kagan has almost no record to discuss, what is she going to defend?  She will be agreeable no matter who is questioning her, and this will be hailed by some as proof that she has an open mind, but it will prove to me that she does not have enough experience making analytical legal arguments on the fly, that she is uncomfortable taking a position if it means she is in conflict with someone else, and is either not confident enough in her own legal knowledge to stand up for whatever positions she has, or she doesn't really have a position at all.

    While that is not what I want to see in someone being confirmed to a lifetime position on the Court, by the time it is obvious to everyone that she is little more than a blank slate, it will be too late to do anything about it.

    I am desperately hoping Obama surprises me and nominates Wood; it would be one of the few things I have seen of him in the last several years I could actually support and applaud.

    Well (5.00 / 1) (#6)
    by squeaky on Sat May 08, 2010 at 11:55:15 AM EST
    Considering that there no true way of knowing how a SC judge will act after given a lifetime appointment, and that includes Wood,
    I would think that the hope you have:

    I am desperately hoping Obama surprises me and nominates Wood; it would be one of the few things I have seen of him in the last several years I could actually support and applaud.

    would be better spent in being pleasantly surprised by the quality of the rulings from whoever he nominates.


    Gotta start somewhere, squeaky. (5.00 / 2) (#8)
    by Anne on Sat May 08, 2010 at 01:22:15 PM EST
    And the beginning in this case is the nomination.

    The nomination absolutely speaks to the person doing the nominating, so choosing what I believe would be a stellar candidate  - and conversely, walking away from a mediocre one - will, I believe, have the side benefit of raising my estimation of Obama; once the nominee is confirmed, is seated on the Court and begins to hear arguments and participate in rulings, my pleasure or displeasure with those rulings will be directed at the Justice, because there will not be a single thing we or Obama can do about it if it turns out "wrong."

    Sure, there's always the chance that anyone nominated to the Court can defy the conventional wisdom about how she - or he - will perform, but I like the odds a more known quantity, and one who actually has a record, will live up to that record better than I do the odds of someone rising to expectations who has little but titles to go on.

    I guess we'll know soon enough where this is headed.


    OK (none / 0) (#9)
    by squeaky on Sat May 08, 2010 at 02:07:34 PM EST
    I guess that ultimately Kagan does not worry me in the least...

    Sotomayer is a true progressive/liberal, which I know because a close friend of mine is very close to very close friends of hers.

    I have a good feeling about Obama's SC picks, and do not worry about Kagan, Wood, et al..


    I actually agree (5.00 / 1) (#10)
    by Big Tent Democrat on Sat May 08, 2010 at 02:08:48 PM EST
    But that is a faith based approach and I simply can not embrace that approach.

    Yeah (none / 0) (#11)
    by squeaky on Sat May 08, 2010 at 02:18:30 PM EST
    I understand, in your position as a political blogger, there would be little to write about taking the "faith based" approach... lol

    I always think of Nixon's appointment of Blackmun during these discussions...  although I cannot quite square my view that one can never tell how a SC apointee will act once on the bench, when it came to my opinion of Bork, Thomas, Scalia, Alito or Roberts.

    And particularly Roberts who provide nothing, (exec priv) during his confirmation. It was clear to me that he was an Right Wing activist.

    I knew how that would all turn out..  


    Vanilla (none / 0) (#12)
    by lentinel on Sat May 08, 2010 at 03:22:09 PM EST
    I am desperately hoping Obama surprises me and nominates Wood

    Obama has consistently failed any positive hope or expectation I have had about him.

    This appointment will be another of many let-downs.

    I am not disappointed in Obama. I never liked him. I never expected anything from him.

    His campaigning for Lieberman was all I needed to know about him.


    Sotomayer Not GOod Enough For YOu? (5.00 / 1) (#13)
    by squeaky on Sat May 08, 2010 at 03:30:42 PM EST
    Or is it that you have a big axe to grind?

    Wood is way too 'out' as a liberal, (none / 0) (#14)
    by Dr Molly on Sat May 08, 2010 at 03:36:48 PM EST
    with her strong record, including defense of abortion rights, warnings against the permanent 'war on terror' state, etc. Obama just doesn't have it in him to fend off the right-wing attacks on her IMO - he's not strong enough. Kagan is the safe and easy choice.

    Kagan Safe And Easy (5.00 / 1) (#15)
    by squeaky on Sat May 08, 2010 at 03:50:47 PM EST
    Kicked military recruiters from Harvard because the military's don't ask don't tell is unconstitutional, during time of war no less...

    Conservatives love that sort of thing.

    It is ok to prefer Wood but to paint Kagan as a conservative is nonsense, imo.


    Detailed article in NYT on (none / 0) (#17)
    by MO Blue on Sat May 08, 2010 at 04:57:08 PM EST
    And Besides (5.00 / 1) (#19)
    by squeaky on Sat May 08, 2010 at 05:23:12 PM EST
    I like having a dependable person like Wood being on the Seventh Circuit court of appeals.

    Don't get me wrong I will not complain if Obama picks Wood, I am just not so bothered by Kagan as many here seem to be.

    Also I think Sotomayer was an excellent pick.


    OK (none / 0) (#18)
    by squeaky on Sat May 08, 2010 at 05:12:41 PM EST
    Ms. Kagan became dean the next year and followed the same policy. But she also issued strong statements against "don't ask, don't tell."

    "The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country," she said shortly after becoming dean at the law school's first reunion for its gay, lesbian and bisexual alumni.

    For me this is more telling of how she would rule...

    I still do not see her as a conservative. Choosing Kagan is certainly more of a crap shoot, compared to Wood. But I do not believe that she would side with the conservatives on the court, and she is 10 years younger than Wood.

    Anyway my point is that I do not have a problem with Kagan, should Obama pick her.


    I selected that article because (none / 0) (#21)
    by MO Blue on Sat May 08, 2010 at 06:10:55 PM EST
    it reported what she did do and what she didn't do in regards to Military recruitment at Harvard. Not everything was as quite clear cut as the selection quoted.

    People should read the entire article which I think  gives a pretty balanced picture.  


    Not According to Some Conservatives (5.00 / 1) (#20)
    by squeaky on Sat May 08, 2010 at 05:53:56 PM EST
    Seems that they are all about the same from a conservative POV.
    Obama began with about 10 candidates but appears to be centering on the two women and two men known to have had interviews with him: Kagan and three federal appeals court judges -- Diane Wood, 59; Merrick Garland, 57; and Sidney Thomas, 56.

    None of the four seems likely to provoke an all-out fight over confirmation, although conservative interest groups already have expressed varying degrees of opposition to each.

    Carrie Severino, chief counsel of the Judicial Crisis Network, a [conservative] group that says it's committed to the Constitution and the Founding Father's "vision of a nation of limited government," said Obama might pick Kagan because she has a relatively thin paper trail for critics to pick apart. Yet Obama could be sure that, as a justice, Kagan would "rubber stamp an agenda he knows the American people are opposed to," Severino said.



    Will Kagan be questioned about (5.00 / 1) (#22)
    by oculus on Sat May 08, 2010 at 06:14:18 PM EST
    her seat on public policy advisory bd. to Goldman Sachs?  One mtg./yr. @ $10,000/mtg.  Nice work if you can get it.  Sam Stein Huff Post

    1995 (none / 0) (#16)
    by robotalk on Sat May 08, 2010 at 03:58:15 PM EST
    But everything changed after 9-11.

    You want answers?  Torture them out of me.

    The perfect democrat (none / 0) (#23)
    by diogenes on Sun May 09, 2010 at 10:56:10 PM EST
    Thomas, Bork, or other Republican nominee equals full disclosure.  Democratic nominee equals no disclosure.  After all, a foolish consistency is the hobgoblin of little minds.