Cracking the Kagan code
If the greatest virtue a Supreme Court nominee can possess is the lack of a paper trail, then Elena Kagan – whom President Obama will reportedly tap as early as Monday – would be a veritable saint. Not only does her lack of judicial experience mean she hasn’t penned a single decision, law professor Paul Campos points out just how little she wrote as an academic: “three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces.” Even this scant record leaves little clues about her thinking, he writes.
A nominee, even one who has never been a judge, doesn’t have to be a graphomaniac, but Kagan’s publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component.
SCOTUSblog’s Tom Goldstein, who has been supportive of Kagan, describes her as “extraordinarily – almost artistically – careful” about her views of constitutional law, managing to avoid taking any definitive positions even in conversation. The simple, empirical fact is that there’s very little evidence available for the public to understand her outlook on the Constitution. Should Obama choose Kagan to replace Justice John Paul Stevens, she can remain a blank slate because the mechanism for public investigation of a nominee – the confirmation hearing – has been reduced to a venue for absurdist performance art.
Kagan knows this as well as anyone. While a law professor at the University of Chicago, she took the summer of 1993 off to help the Senate Judiciary Committee prepare for then-Circuit Judge Ruth Bader Ginsburg’s confirmation hearing. Those proceedings saw the debut of what’s come to be known as the “Ginsburg Rule” – the nominee’s right to pass on any question about a case or issue they might later rule on. Drawing on her experience, Kagan wrote about the devolution of the confirmation process in a 1995 book review.
Subsequent hearings [following Robert Bork’s in 1987] have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy – muted, polite, and restrained – but all that good order comes at great cost. [emphasis added]
Kagan argued that senators should not accept nominees’ evasion of substantive questions. Unfortunately, that has proven a difficult challenge in the Supreme Court hearings since her evaluation of the so-called confirmation mess. Senator Chuck Schumer expressed his frustration at this institutionalized avoidance during his 2005 questioning of Chief Justice John Roberts:
Let me just say, sir, in all due respect – and I respect your intelligence and your career and your family – this process is getting a little more absurd the further we move.
You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don’t get any answers.
It’s as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, “I like movies with good acting. I like movies with good directing. I like movies with good cinematography.”
And I ask you, “No, give me an example of a good movie.” You don’t name one. I say, “Give me an example of a bad movie.”
You won’t name one. Then I ask you if you like “Casablanca,” and you respond by saying, “Lots of people like ‘Casablanca.’” You tell me it’s widely settled that “Casablanca” is one of the great movies.
For the record, Roberts said he’s a fan of “Dr. Zhivago” and “North by Northwest.” Otherwise, he remained ever the artful dodger.
Should Obama choose Kagan, she will undoubtedly face tough questions about her opposition to allowing military recruiters on campus when she was the dean of Harvard Law School. There may even be a meta-moment if she’s asked about her unsparing critique of confirmation hearings during her own confirmation hearing. But if she chooses to deploy the Ginsburg Rule to avoid substantive questions about her views of constitutional law, those views will remain a mystery. It would be up to her, really.
(Photo Credit: Flickr user dsearls used under a Creative Commons license)