Given the brutal partisanship that has come to dominate hearings of nominees to the U.S. Supreme Court, the take on Elena Kagan after three long days of questioning by the Senate Judiciary Committee might come as a surprise. Republican members themselves said that she has acquitted herself well, is well qualified for the position, and seems certain to win Senate approval. Their comments confirm the obvious: Ms. Kagan, the Solicitor General for the Obama administration and a deeply experienced lawyer and legal scholar, is by all accounts an excellent nominee. In the absence of any evidence to the contrary, she should be confirmed.
The hearings have affirmed her broad and well-grounded view of the law and the high court’s role in guiding the judiciary. They have also showcased her thoughtfulness and ability to explain and defend her views in the give-and-take of the committee’s extensive questioning.
Hearings still too stacked
The dynamics of such hearings, of course, are stacked on all sides. The opposition party, Republicans in this case, always pushes questions designed to trap, embarrass or discredit the nominee. The president’s party throws softballs to his nominee. And the nominee tries to avoid being pinned down in a disquisition on a controversial subject that could destroy her nomination.
Still, the sparring, though often unrevealing of a nominee’s leanings and future legal positions, is useful for testing a potential justice’s mettle, mental capacity, perseverance and wisdom. It is on that score that Ms. Kagan’s chief Republican inquisitors in the hearings — Sens. John Kyl of Arizona, Lindsey Graham of South Carolina, Orrin Hatch of Utah, Jeff Sessions of Alabama and John Cornyn of Texas — have admittedly come away impressed by Ms. Kagan.
Republican fishing
Sens. Hatch and Graham, for example, tried and failed to trip her up in questioning over her legal advice in the Clinton White House on a medical group’s statement on partial-birth abortion. The American College of Obstetricians and Gynecologists ultimately adopted the statement she suggested in the debate over a proposed ban on such abortions. She persuaded the senators Wednesday that in her policy work she did not, and could not, intervene in the group’s medical views.
Sen. Sessions, the ranking Republican, tried equally unsuccessfully to distort Ms. Kagan’s role, as Dean of the Harvard Law School, in briefly denying the Army from recruiting Harvard students through the office of student services because of the Army’s “don’t ask, don’t tell” rule. She calmly explained that her position as the Law School dean required her to bar solicitation by any group or agency that discriminated against anyone on a number of grounds, including sexual orientation.
She subsequently arranged a different venue for Army recruiters, she said, and then shifted them to the student services office when a waiver was granted. As solicitor general, she said she also “vigorously defended” the statute that embodies the “don’t ask, don’t tell” rule when it was challenged in litigation.
Senate Republicans often say they are adverse to judicial activism. Thus it’s an irony that some GOP members of the committee seem to think Ms. Kagan may not be enough of a judicial activist. Sen. Cornyn, who referred to Ms. Kagan as “soon-to-be Justice Kagan,” said he feared she would support acts of Congress, out of deference for the power of the federal government, that he believed might over-reach and require an activist judge to squash bad law.
Ms. Kagan, of course, has obviously adopted the now-typical post-Bork standard of refusing to say precisely how she might rule in the situations that Senate questioners typically would most want to know. She has done so despite having written a critical view in 1995 of a Senate committee hearing process that had become a “vapid and hollow charade.”
Justice John Roberts’ model
Certainly it has become that. Following the implosion of the Bork nomination due to his frank but skewed opinions, nominees subsequently began avoiding specificity on hot button issues on the grounds that they may have to rule on such issues on the court. That, in turn, has devolved into a practice of rote humility, vague answers and outright denial of any sentiment that might torpedo a nominee’s chances of approval.
In his own hearings five years ago, Chief Justice John Roberts himself fixed the current model for this “judicial modesty” standard. As a nominee, Mr. Roberts pledged judicial neutrality, loyalty to legal precedents handed down and sustained by prior courts, and said his role mainly would be like an umpire calling “balls and strikes.” He has subsequently has turned long-standing court precedents on campaign financing, the Second Amendment and the restricted rights of corporations upside down to suit his own personal views and steer the court toward reactionary judicial activism.
Ms. Kagan’s realism
Ms. Kagan, at least, has stated her view that the Supreme Court has the prerogative and responsibility to reinterpret traditional readings of the Constitution in view of new findings and evolving standards. She cited, as examples, the notions of libel as related to the First Amendment, and the constitutional basis for search and seizure.
She also acknowledged the realistic view that the process of judgment requires far more than the “robotic” nature that the metaphor of “calling balls and strikes” might suggest.
In view of her distinguished scholarly work and legal record in the Clinton administration, at Harvard’s School of Law and as Solicitor General, she has, more than most, demonstrated the ability to think clearly and soundly across the legal landscape. We welcome her judgment and her legal skills. Her nomination merits approval.