In what is by now an oft-quoted snippet from one of her law review articles, Supreme Court nominee Elena Kagan castigated the confirmation hearings of Justices Souter, Kennedy, Ginsburg and Breyer as a "vapid and hollow charade." Since Kagan wrote those words in 1995, three more Justices—Roberts, Alito and Sotomayor—have been nominated and confirmed, each in more or less the manner Kagan described: a "peculiar ritual dance" in which senators politely ask questions that the nominees politely refuse to answer, a farce dominated by, in Kagan’s words, the "repetition of platitudes" and "personal anecdotes."
What is less remarked upon is that in her article Kagan proposed a model for a more vigorous and candid confirmation hearing—that of Judge Robert Bork. The process worked in that instance, she argued, not because of the particular result but because the hearings "presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." In both popular and right-wing parlance, "borking" now means to vilify and defame a nominee in order to block his appointment, but Kagan’s description is in fact a far more accurate account of what happened—senators rigorously probed and considered Bork’s legal opinions and voted accordingly. So it is with this understanding that we propose, in the spirit of democratic deliberation of which she so eloquently wrote, that Elena Kagan should be borked.
Since President Obama nominated Kagan, many of her former colleagues have spoken passionately about her intelligence, her commitment to the First Amendment (her field of expertise) and her ability to craft consensus and convince conservative legal minds. They assure us, based on their personal and professional encounters with her, that Kagan would be a reliable liberal vote and invoke what is undeniably a sterling record of professional accomplishments and political associations—working as a research assistant for Laurence Tribe, clerking for Abner Mikva and Thurgood Marshall and shepherding Ruth Bader Ginsburg’s nomination through the Senate before working in the Clinton administration and teaching law at Chicago and Harvard, where she was dean.
Progressive critics of Kagan argue that as a replacement for Justice John Paul Stevens—a formidable liberal voice on the Court, particularly on civil liberties—she would move the Court to the right. They point to statements made during her confirmation hearing for solicitor general suggesting that she believes the nation has been "at war" since the 1990s and in which she agreed that the government could detain suspected terrorists indefinitely. They worry about how vehemently she defended the administration’s assertions of executive power once in that position. Kagan’s advocates argue that she was compelled to do so because her duty as solicitor general is to present the government’s case—and that her arguments before the Court in that capacity do not necessarily reflect her own views. They point instead to a memo she wrote with deans of other law schools aggressively challenging Congress’s attempt under the Bush administration to strip the courts of their power to review the legality of detainees’ imprisonment.