Gitmo Nation Update: Kagan: That Was Them, This Is Me

The contrast between Elena Kagan's current stance regarding
which questions a judicial nominee can safely answer and the views
she expressed on the subject in a 1995 book review, highlighted
on Monday by Radley Balko, has been widely noted in
print and TV coverage. But the
review, a 25-page essay published by The University of
Chicago Law Review, is well worth reading in full, because it
provides a cogent, thoughtful, and eloquent critique of the "vapid
and hollow charade" in which Kagan is currently participating.

Kagan takes issue with Yale law professor Stephen Carter's
argument, in his book The Confirmation Mess, that one of
the main problem with the Senate's examination of judicial nominees
is that it focuses too much on their judicial philosophies
and positions on contentious legal issues. Carter's paradigmatic
example is Robert Bork's 1987 confirmation hearings, where the
appeals court judge spoke candidly and at length about his approach
to constitutional interpretation. The Senate rejected Bork after
his opponents mounted a hyperbolic, vituperative campaign against
him, branding him as a dangerous extremist (they might have
been right about that).

But as Kagan notes, confirmation hearings before and since then
have been congenial affairs where the nominees evade questions
about their views on legal matters and senators let them. She
offers amusing examples from the hearings on Clinton nominees Ruth
Bader Ginsburg and Stephen Breyer:

Justice Ginsburg's favored technique took the form
of a pincer movement. When asked a specific question on a
constitutional issue, Ginsburg replied (along Carter's favored
lines) that an answer might forecast a vote and thus contravene the
norm of judicial impartiality. Said Ginsburg: "I think when you ask
me about specific cases, I have to say that I am not going to give
an advisory opinion on any specific scenario, because...that
scenario might come before me." But when asked a more general
question, Ginsburg replied that a judge could deal in specifics
only; abstractions, even hypotheticals, took the good judge beyond
her calling. Again said Ginsburg: "I prefer not to...talk in grand
terms about principles that have to be applied in concrete cases. I
like to reason from the specific case."...

Justice Breyer was smoother than Justice Ginsburg,
but ultimately no more forthcoming. His favored approach was the
"grey area" test: if a question fell within this area—if it asked
him to comment on issues not yet definitively closed (and therefore
still a matter of interest)—he must, he said, decline to comment.
Like Justice Ginsburg, he could provide personal anecdotes—the
relevance of which were open to question. He could state settled
law—but not whether he agreed with the settlement. He could explain
the importance and difficulty of a legal issue—without suggesting
which important and difficult resolution he favored. What he could
not do was to respond directly to questions regarding his legal
positions. Throughout his testimony, Breyer refused to answer not
merely questions concerning pending cases, but questions relating
in any way to any issue that the Supreme Court might one day
face.

For further example of such evasions, you can watch Kagan's own
confirmation hearings. As Sen. Tom Coburn (R-Okla.) complained
to The New York Times yesterday, "She's doing exactly what
she criticized other nominees for doing. She's dancing." And it is
worth emphasizing that Kagan did indeed criticize (and not merely
describe) this approach to confirmation hearings, in what for her
are very strong terms:

If recent hearings lacked acrimony, they also
lacked seriousness and substance. The problem was the opposite of
what Carter describes: not that the Senate focused too much on a
nominee's legal views, but that it did so far too little. Otherwise
put, the current "confirmation mess" derives not from the role the
Senate assumed in evaluating Judge 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.

Likewise, Kagan was quite clear in her description of how
confirmation hearings should be conducted (emphasis
added):

The critical inquiry as to any individual similarly concerns the
votes she would cast, the perspective she would add (or augment),
and the direction in which she would move the institution….

The bottom-line issue in the appointments process must concern
the kinds of judicial decisions that will serve the country and,
correlatively, the effect the nominee will have on the Court's
decisions….

The Senate's consideration of a nominee, and particularly the
Senate's confirmation hearings, ought to focus on substantive
issues; the Senate ought to view the hearings as an opportunity to
gain knowledge and promote public understanding of what the nominee
believes the Court should do and how she would affect its
conduct....

Open exploration of the nominee's substantive views...enables
senators and their constitutuents to engage in a focused discussion
of constitutional values, to ascertain the values held by the
nominee, and to evaluate whether the nominee possesses the values
that the Supreme Court most urgently requires. These are the issues
of greatest consequence surrounding any Supreme Court nomination
(not the objective qualifications or personal morality of the
nominee); and the process used in the Senate to serve the
intertwined aims of education and evaluation ought to reflect what
most greatly matters....

Indeed, contrary to Carter's view, the President and
Senate themselves have a constitutional obligation to consider how
an individual, as a judge, will read the Constitution:
that is one part of what it means to preserve and protect the
founding instrument.

Kagan considered and explicitly rejected the argument that
"judicial independence" precludes this sort of inquiry (emphasis
added):

The judicial independence that we should focus on protecting
resides primarily in the inability of political officials, once
having placed a person on a court, to interfere with what she does
there....

Some kinds of questions, as Carter contends, do pose a threat to
the integrity of the judiciary. Suppose, for example, that a
senator asked a nominee to commit herself to voting a certain way
on a case that the Court had accepted for argument. We would
object—and we would be right to object—to this question, on the
ground that any commitment of this kind, even though unenforceable,
would place pressure on the judge (independent of the merits of the
case) to rule in a certain manner. This would impede the judge's
ability to make a free and considered decision in the case, as well
as undermine the credibility of the decision in the eyes of
litigants and the public. And once we accept the impermissibility
of such a question, it seems we have to go still further. For there
are ways of requesting and making commitments that manage to
circumvent the language of pledge and promise, but that convey the
same meaning; and these scantly veiled expressions pose dangers
almost as grave as those of explicit commitments to the fairness,
actual and perceived, of the judicial process. But we do
not have to proceed nearly so far down the road of silence as
Carter and recent nominees would take us—to a place where comment
of any kind on any issue that might bear in any way on any case
that might at any time come before the Court is thought
inappropriate.

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….

A nominee can say a great, great deal before making a
statement that, under this standard, nears the improper. A
nominee, as I have indicated before, usually can comment on
judicial methodology, on prior caselaw, on hypothetical cases, on
general issues like affirmative action or abortion. To make this
more concrete, a nominee can do...well, what Robert Bork did. If
Carter and recent nominees are right, Judge Bork's testimony
violated many times a crucial norm of judicial conduct. In fact, it
did no such thing; indeed it should serve as a model.

But not for Kagan herself. Yesterday she dodged
questions about gun rights, abortion, Bush v. Gore, and
the Miranda rule, saying she did not want to "provide some
kind of hints" about her views on matters that might come before
the Court. Regarding the position she staked out in 1995, she
said:

I think that that was wrong....It wouldn't be appropriate for me
to talk about what I think about past cases—you know, to grade
cases—because those cases themselves might again come before the
court.

How can we explain this reversal on an issue that Kagan said was
of such vital importance that her current stonewalling is
preventing senators from meeting their constitutional obligations?
Kagan herself, discussing the performances of Ginsburg and Breyer,
offered a few suggestions:

I am sure each believed (along with Carter) that
disclosing his or her views on legal issues threatened the
independence of the judiciary. (It is a view, I suspect, which for
obvious reasons is highly correlated with membership in the third
branch of government.) More, I am sure both judges knew that they
were playing the game in full accordance with a set of rules that
others had established before them. If most prior nominees have
avoided disclosing their views on legal issues, it is hard to fault
Justice Ginsburg or Justice Breyer for declining to proffer this
information. And finally, I suspect that both appreciated that, for
them (as for most), the safest and surest route to the prize lay in
alternating platitudinous statement and judicious silence. Who
would have done anything different, in the absence of pressure from
members of Congress?