Opinion: At Hearing, Kagan Must Follow Own Advice

(May 21) -- A prominent law professor once condemned the Senate confirmation process for Supreme Court nominees as a "vapid and hollow charade," and railed that the "repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

This was no less true in 1995, when Elena Kagan, then at the University of Chicago, advanced this view, as it is today now that she's President Barack Obama's choice to replace John Paul Stevens on the U.S. Supreme Court.

While Kagan is a litigator and former law school dean with an impressive history of career advancement, little is known about her judicial philosophy. Her personal views would be immaterial if, as Chief Justice John Roberts suggested during his confirmation, judging were a mere mechanical exercise akin to calling balls and strikes. But Kagan herself recognized that judges are more than neutral umpires, when she wrote: "... it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value."

Beliefs matter; so a serious examination of Kagan's views is needed.

But how should an inquiry into Kagan's values proceed? In that 15-year-old article critiquing the process she now faces, Kagan proposed discussions of nominees' broad judicial philosophy, followed by inquiries into their views on specific constitutional issues. This eminently sensible format should be adopted and Kagan should be held to the very same standard she herself so persuasively advocated for others.

In a very troubling sign of her lack of intellectual integrity, Kagan, as soon as she was nominated for solicitor general, renounced her own demand for candor during that confirmation hearing last year, claiming that she had "changed her mind."

Worse, the White House has signaled that her Supreme Court confirmation will follow the prevailing model, which is designed to obfuscate, rather than illuminate, a nominee's true worldview. Her proponents will argue that she is only following the traditional protocol that began with Justice Ruth Bader Ginsburg, who refused to discuss past or potential cases on the grounds that it would undermine her impartiality. This argument fails for several reasons.

First, unlike Ginsburg and her more immediate predecessors, there is real uncertainty regarding Kagan's legal philosophy. While Ginsburg's views -- as Kagan herself put it -- "already were widely known, in large part through scholarship and reported opinions," Kagan has only published a handful of academic papers, largely on technical issues. As she acknowledged in 1995, the need for substantive hearings "is much greater when ... the prior record and writings of the nominee leave real uncertainty as to the nominee's legal philosophy." Clearly then, it's fair and appropriate to expect more from Kagan.

Conservatives learned this lesson with David Souter, who surprised then-President George H.W. Bush by joining the liberal wing of the court. And when George W. Bush nominated the blank slate known as Harriet Miers, Democrats -- including Barack Obama -- demanded that she reveal her views about the great constitutional issues of the day before being confirmed.

Second, every nominee brings existing viewpoints to the table. This is not "prejudging," but just an inevitable fact of how human beings reason. Justices Antonin Scalia and Stephen Breyer consistently opine publicly on a variety of issues that have already -- or might one day -- come before the Supreme Court. It makes no difference that they are current justices if the concern is impartiality. Asking nominees what they think about the law is not the same as asking for assurances on specific cases.

"There is a difference between a prohibition on making a commitment (whether explicit or implicit) and a prohibition on stating a current view as to a disputed legal question." Again, those are Kagan's own words.

Finally, it is vital to recognize that political calculations do not compel Kagan to remain silent. Roberts, Alito and Sonia Sotomayor all had clear and well-known views and were nonetheless confirmed. Several Republican senators have already intimated that they will not oppose Kagan, making her confirmation all but assured.

A hearing that fails to establish a foundation for understanding the "votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution" would be nothing more than "vacuity and farce," with the Senate "incapable of either properly evaluating nominees or appropriately educating the public," Kagan wrote.

"Such hearings," she added, "serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government."

In short, we must insist that what was true of nominations 15 years ago is still true today. If Kagan claims to now believe otherwise, she owes it to the American people to explain why she no longer is in agreement with herself, and do so with the same compelling logic and clarity as before.

Glenn Greenwald, a former constitutional lawyer, is a columnist at Salon.com and the author, most recently, of "Great American Hypocrites: Toppling the Big Myths of Republican Politics." Daniel Novack is a third-year student at the New York University School of Law and Greenwald's research assistant.