The New York Review of Books

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US Supreme Court nominee Elena Kagan takes her seat before answering questions before the Senate Judiciary Committee for her confirmation hearing on Capitol Hill in Washington on June 30, 2010

1.

Recent Senate Judiciary Committee hearings on Supreme Court nominees have been a waste of everyone’s time, a parade of missed opportunities. In 1995 Professor Elena Kagan, then of the University of Chicago Law School, explained why:

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…. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution.

She offered clear advice. Though nominees should not declare their voting intentions about specific cases on the horizon, she said,

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 case law, on hypothetical cases, on general issues like affirmative action or abortion.

Her own confirmation hearings in late June were a Galilean moment. How much of her 1995 statement would she recant? Almost all of it, it turned out. She said that Senator Orrin Hatch of Utah had persuaded her, in a private meeting before the hearings, that the “balance” of her earlier statement was “a little off.” So, contrary to her own advice, she would not “grade” either the justices of the present court or the Court’s past decisions, she would not speculate about hypothetical cases, and she would certainly not discuss “general issues like affirmative action or abortion.” On the contrary, she vowed to say nothing from which the public might draw even any general assumptions about the political impact she might have on the Supreme Court.

It was predictable that Kagan would follow this now well-trodden path. She knew that if she disclosed nothing she would soon be a Supreme Court justice for life. If, on the contrary, she was even slightly more adventurous, there was a good chance she would not be confirmed. If she showed herself sympathetic to abortion rights or unsympathetic to gun rights, for instance, Republicans and conservative Democrats would feel bound to join a filibuster to sink her.

The committee senators, for their part, had no reason to press her to be more forthcoming. Democrats had no wish to endanger her appointment, which would be a terrible defeat for the President, and Republicans had no wish to contradict their own repeated and ludicrous declarations (cheerfully endorsed by their recent nominees, Chief Justice John Roberts and Justice Samuel Alito) that a judge can always decide what the law requires without calling on any moral or political convictions or any theory of social justice. Most of the senators were content to report their own commitment to gun rights and, depending on party, to announce their contempt or enthusiasm for the Supreme Court’s recent 5–4 ruling, in the Citizens United case, that freed corporations to spend whatever they wish on television electioneering.¹

The Republicans labored, somewhat halfheartedly, to paint Kagan as hostile to soldiers because as dean of the Harvard Law School she, like the deans of other prominent law schools, did not allow military recruiters who discriminated against open homosexuals the same recruitment facilities as other employers. It didn’t work because she pointed out that the military had better recruitment access in her administration than under her predecessors.

Some senators tried, for a time, to tempt Kagan out of her defensive crouch. Senator Herb Kohl of Wisconsin said he assumed that she, like any other politically engaged person, has “passions.” Justice Ruth Bader Ginsburg is passionate about women’s rights, for instance, and former Justice Thurgood Marshall, for whom Kagan clerked, was passionate about civil rights. “I’m sure you’re a woman of passion,” Kohl said. “Where are your passions?” Yes, she admitted, she had passions too, but there was no point in discussing them because they would, of course, play no role in her decisions, which would be guided only by law. Senator Chuck Grassley of Iowa asked her to say that gun ownership was not merely a constitutional right under the Second Amendment but a God-given natural right as well. She declined to say whether she believed in natural or moral rights but declared that she would respect the Court’s recent 5–4 decisions recognizing constitutional gun rights as (in one of her favorite phrases) precedents “going forward.”

Senator Jon Kyl of Arizona asked whether she agreed with President Obama, who said, when he nominated Justice Sonia Sotomayor, that law decides 95 percent of a hard case, but that the rest of the decision was a matter of empathy. No, she replied, even a very hard case is “law all the way down.” There is always one right answer to any constitutional question and though judges may disagree about what that right answer is they must do their best to find it. Empathy or sympathy or a sense of social justice has nothing to do with the matter.

Did she stand by the legal and political opinions she had expressed in various roles earlier in her career? No, she was wearing different “hats” in her earlier jobs, and what she said then was no guide to what she would think as a judge. When she clerked for Justice Marshall she only “channeled” his opinions; when she worked in the Clinton White House she promoted what she took to be the President’s views; as solicitor general she has, like a good advocate, acted only in the interests of her client, the United States.

Near the end of the last day of hearings—and near the end of his own political career—Senator Arlen Specter of Pennsylvania expressed his disgust:

Well, Solicitor General Kagan, I think the commentaries in the media are accurate. We started off with a standard that you articulated at the University of Chicago Law School about substantive discussions. And they say we haven’t had them here, and I’m inclined to agree with them. The question is where we go from here…. It would be my hope that we could find someplace between voting no and having some sort of substantive answers.

He was right about the media: the Kagan hearings have been almost universally denounced as pointless and calls for reform have increased. It is important to review the hearings in some detail to consider how far that charge is justified and how confirmation hearings might be improved.

2.

The Supreme Court is a very powerful political institution: justices are appointed for life and five of them can veto any decision, no matter how popular, of Congress or a state legislature. Only the Senate confirmation hearings offer the public a chance to participate in the process of selecting these powerful officials, and that opportunity can be important. It was popular political pressure that led the Senate to reject President Reagan’s nomination of Judge Robert Bork in 1987. But since then nominees have largely stonewalled the hearings and, as Kagan pointed out in 1995, failure of disclosure undermines the public’s power to help choose. So senators would seem to have a democratic duty to press nominees to be more candid. Specter said that perhaps the Senate should “stand up on its hind legs” and reject any nominee who is as unforthcoming as Kagan was.

Some of the arguments that nominees have offered for their silence are very weak. Kagan said that she must not disclose her views about particular issues that might come before the Court because it would be injudicious and unfair to future litigants for her to publish her views in advance. But she is joining a Court on which eight other justices have expressed their opinions on a large variety of constitutional issues through their votes and their majority or dissenting opinions. If these public statements do not compromise their ability to decide fairly in the future, there is no reason why nominees should not make their opinions public as well.

However there is a genuine and important countervailing argument. It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights. It seems doubtful, for instance, that anyone who declared a concern to protect due process rights of suspected terrorists, or to better protect the rights of women to choose abortion, or to recognize a constitutional right to gay marriage could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.

True, the right-wing phalanx of the Court has used its power to overrule the will of the majority in what strikes many of us as an indefensible and dangerous way: not to protect a vulnerable minority from majority indifference or hatred but to protect conservative interests and privilege from progressive legislation.² Richard Posner, himself a conservative judge, recently wrote that four of the five most conservative justices since 1937 are together on the Court now: Chief Justice Roberts and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito. Many lawyers believe it would have been better had Roberts and Alito been forced to disclose their real substantive intentions in their hearings because they would not have been confirmed if they had. Posner said of Roberts: “The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’s reputation for candor and further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”³

Scholars who approved the power of the Supreme Court to overrule legislation during its more liberal periods may well have second thoughts now that right-wing justices are so firmly in control. But I continue to think that the institution of judicial review has done more good than harm to our country, and still promises more good than harm in the long run. We should not compromise the Court’s role or its independence just because it has now been captured—we do not know for how long—by right-wing zealots who understand neither law nor justice. That would be yet a further grave cost of the right-wing coup.

Kagan was therefore right in 2010: her 1995 statement did indeed get the “balance” wrong. Nominees should not be required to rank other justices or past decisions and they should not be required to discuss their intentions about highly controversial constitutional issues like abortion or the rights of accused terrorists. But they should certainly be pressed to discuss constitutional theory and political principle at a more abstract level, and that interrogation should be much deeper than the entirely superficial level at which such questions were raised in the Kagan hearings.