Elena Kagan’s first "interview" as a Supreme Court nominee quickly hit some turbulence.
Kagan sat down with Arun Chaudhary, an Obama administration staffer, for a White House video presenting Kagan "in her own words." Like a campaign bio ad with a dash of 60 Minutes, the three-minute film shows Kagan’s rise, as she sits, flanked by an American flag, ticking through her work as a law clerk, dean and government attorney.
Yet the video, like Kagan, says virtually nothing about her legal views.
And the video, like the White House, aims to divert rather than answer public questions about this important nominee.
While Obama’s staff often use web videos to share information and advocacy directly with the public, routing around the media filter, the Kagan spot drew unusually sharp complaints from reporters and legal commentators. A CBS News report of press secretary Robert Gibbs’s dismissive response to questions about the video was the most linked story online Wednesday. And Jonathan Turley, a George Washington University law professor, compared the White House’s Kagan press strategy to Sarah Palin’s stint on the 2008 campaign trail. That’s probably the only name that tops Harriet Miers for heartburn on Pennsylvania Ave right now.
Supreme Court nominees do not usually do media interviews before their confirmation hearings, however, so it’s not like the White House has breached decorum or Washington expectations. There is a much larger dynamic in play.
Obama has tapped a thoroughly qualified individual with a very thin paper trail. This is an individual who used to argue that Supreme Court nominees should "reveal" themselves and disclose their "views on important legal issues" in confirmation hearings. Kagan even blasted the modern, evasive confirmation process as an "embarrassment" — a "vapid and hollow charade."
But now, White House officials say Kagan has dropped those ideas altogether.
"Does anyone, anywhere, believe that her ‘reversal’ is motivated by anything other than a desire to avoid adhering to the standards she tried to impose on others?," asks attorney Glenn Greenwald, a vocal Kagan critic. It’s a good question, since applying standards fairly and uniformly is a key quality that many people look for in judges.
The broader issue is whether the U.S. Senate will find a way to dispense with a review of judicial nominees that purports to ignore ideology and judicial values – a process that everyone who is not up for confirmation rightly sees as, yes, a charade. Even senators admit it.
"The not-so-dirty little secret of the Senate is that we do consider ideology, but privately," explained Sen. Chuck Schumer in 2001, when he was leading an aggressive effort on a Senate Judiciary Subcommittee to bring ideology out of the shadows and back into the confirmation process. The ideology test was more about how than if, argued Schumer, so overtly ideological hearings would actually serve transparency. "Examining the ideologies of judicial nominees has become something of a Senate taboo," he explained, "in part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground."
Schumer did make some progress in nudging his colleagues to nudge appeals court nominees, as Jeffrey Toobin reported in a thorough 2003 article, but by John Roberts’ hearings it was back to judges calling "balls and strikes." That metaphor, draining judges of any larger legal vision, has stuck. In fact, during a single day of hearings for Obama’s last nominee, Sonia Sotomayor, there were over 25 references to "balls and strikes" or umpires.
Many people would prefer an honest airing of the views, ideology and legal principles of the people headed for the most powerful lifetime job in America. President Obama may have uncorked more than he bargained for, in nominating a qualified, talented but largely unknown attorney — who happens to have a clear record supporting ideological candor for nominees — in order to fill the large, liberal shoes of Justice John Paul Stevens.
Let’s learn more about her. She’s not Sarah Palin and she’s not an umpire. Here’s hoping the White House will free Elena Kagan. Or that she frees herself.