Legal Commentary

Kagan?s New View of Confirmation Hearings?

By Jonathan H. Adler

In 1995, then-law professor Elena Kagan wrote that Senators should ask, and judicial nominees should answer, more probing questions about a nominee?s judicial philosophy.  Her article, ?Confirmation Messes, Old and New,? 62 U. Chi. L. Rev. 919 (1995), maintained that the Bork hearings? robust give and take over constitutional law was a better model than the ?vapid and hollow charade? witnessed in subsequent hearings.  At the time, Kagan argued that it is appropriate, if not essential, for Senators to inquire into a nominee?s ?broad judicial philosophy? as well as ?her views on particular constitutional issues? including those ?the Court regularly faces.?  She also maintained that Senators should demand answers and downplayed concerns that detilaed questioning of this sort could compromise judicial independence.   According to Kagan, this approach would make confirmation hearings ?an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.?

Does Kagan still hold this view?  Maybe not, according to Ron Klain, Chief of Staff for Vice President Biden.  As the Daily Caller reports, Klain told reporters that Kagan has come to see the wisdom of a more restrained and closed-mouth approach.

Klain pointed to Kagan?s testimony during confirmation hearings for her current job as solicitor general, the government?s top lawyer.

?She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,? Klain said, prompting laughter from a few reporters.

?You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn?t go in answering about specific legal questions,? Klain said.

Full post as published by The Volokh Conspiracy on May 11, 2010 (boomark / email).