Judging Elena Kagan

Judging Elena Kagan

Obama’s Supreme Court nominee should be "borked."


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.

The truth is, on the fundamental issues of executive power and civil liberties, we simply do not know enough about Kagan’s views; because she was never a judge and has a relatively slim paper trail as a scholar and a litigator (in which her role was constrained), we are left parsing these few statements for larger meaning. The same is true on matters of corporate power and other vital issues. When Kagan argued the administration’s case in Citizens United v. FEC, against granting corporations near limitless rights to political spending, was she expressing her views or those of the president? When she urged President Clinton to accept compromise legislation banning late-term abortions, was she articulating her opinion about the right to privacy under Roe v. Wade, or was she merely offering legal advice in her role as a White House aide? When she said there is not a "constitutional right to same-sex marriage," was she articulating her understanding of equal protection under the Constitution, or merely describing objectively the current state of constitutional law? And if the former, how does that belief square with her statement that the military’s "don’t ask, don’t tell" policy is "a moral injustice of the first order"?

Kagan should be pressed on all these matters during her confirmation hearing. Will she get the serious discussion and substantive debate that she once advocated for all Supreme Court nominees? That depends on two things. Will Senate Democrats exercise their duty to review the nominee independently, or will they defer to the president out of expediency, ensuring what Kagan once lamented as the "safest and surest route to the prize"? And will Senate Republicans allow such debate to take place, or will they make a mockery of the process and take the line of attack already fomenting on right-wing websites—whisper campaigns about her personal life, unsubstantiated assertions that she is a "stealth radical" and unsupportable claims that she is underqualified ("the Left’s Harriet Miers")? In other words, will they bork Elena Kagan in the pejorative sense of the term?

We can again look to Kagan’s words for guidance here. Personal attacks and caricatures of a nominee as a "radical monster" are made possible, she argued, in a vacuum of serious inquiry. "The way to promote reasoned debate thus lies not in submerging substantive issues," she wrote, "but in making them the centerpiece of the confirmation process." On this matter, we could not agree more.

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