President Obama’s nominated Solicitor General of the United States, Elena Kagan to be justice on the Supreme Court yesterday. Kagan has no judicial experience and a scant record of writing, but Kagan did express a very illuminating opinion concerning the Senate’s confirmation process. In a book review of “The Confirmation Mess” by Stephen L. Carter in the Spring of 1995, Elena Kagan wrote:
When the Senate ceases to engage nominees in a 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.
Senators should apply the Kagan Standard to Elena Kagan. Both Republican and Democrat Presidents have been guilty of nominating candidates for the federal bench that refuse to answer direct questions about their judicial philosophy. Senators should not bow deeply to the administration’s attempts to rush Kagan through based upon artificial timelines, but must require, through extended debate if necessary, that Kagan engage in a “meaningful discussion of legal issues” and answer detailed questions about her judicial philosophy. Having claimed that judges need to answer questions, she must not now be permitted to hypocritically engage in the very vacuity and farce that she denounced.
The Constitution states in Article 2, Section 2 that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.” This has been interpreted many ways by different Senators and pundits. Kagan advocated that the Senate use the confirmation process to “properly evaluat(e) nominees.” Senators should take Kagan’s admonition to heart and apply the Kagan Standard to this nomination process.
If history and Senators’ prior experience with Kagan are any guide, there is reason to believe that this nominee will be evasive. Senator Arlen Specter, Republican Ranking Member of the Senate Judiciary Committee at the time, grilled Elena Kagan during her nomination to be Solicitor General of the United States. Specter joined 30 other Republicans in voting no on the nomination on March 19, 2009.
I have gone to substantial length, really great length, to find out about Dean Kagan’s approach to the law and approach to the job of Solicitor General and to get some of her ideas on the law because she is nominated to a critical public policymaking position. I had the so-called courtesy visit with her in my office, which was extensive, as ranking member on the Judiciary Committee. We had an extensive hearing, where I questioned her at some length. Written questions were submitted, and she responded. I was not satisfied with the answers that were given, and when her name came before the committee for a vote, I passed. That means I didn’t say yea or nay. I wanted to have her nomination reported to the floor so we could proceed, and I wanted an opportunity to talk to her further.
Senator Specter was not satisfied by Kagan’s answers to questions during his one-on-one meeting and during the hearing on her nomination:
After the long process I have described, I still don’t know very much about Dean Kagan. It is frequently hard, in our separation of powers, for the legislative branch to get much information from the executive branch. We look for information, and frequently we are told it is executive privilege. We are told it is part of the deliberative process or we are simply not told anything, with long delays and no responses. The legislative branch has two critical pressure points. One pressure point is the appropriations process, to withhold appropriations, which, candidly, is not done very often. It is pretty tough to do that. Another point is the confirmation process where nominations are submitted to us to be confirmed, which the Constitution requires. So there the executive branch has no choice. They can’t talk about executive privilege or deliberative process or anything else. But there is a question as to how thorough nominees’ answers to questions should be.
Senators should not rush to confirm a nominee who fails to answer questions about how they would interpret the Constitution. Indeed, if the nominee—particularly a nominee who has no prior judicial record to judge—fails to directly answer questions about judicial philosophy, the role of precedent, the role international law, and whether they view the Constitution as a living document, then Senators may be required to engage in extended debate to get answers. There is no other way for Senators to engage in their constitutional duty of advise and consent.