Academic

Now that Elena Kagan has been nominated to the Supreme Court, the preparations for the hearings begins. Expect some version of the following exchange:

[Ed. Note: Much of the usual Senatorial flourishes (aka the blah-blah) edited out]:

GOP Senator: Ms. Kagan [Ed Note: or will she be called "General Kagan"?] could you walk through your analysis of whether [health care legislation][insert other statute or past Obama Administration action] is constitutional?

SG Kagan: With all due respect, Senator, as I mentioned before, it would be inappropriate for me to comment on matters on which I might be called to later judge should I be confirmed to the Court.

GOP Senator: But you would obviously have to recuse yourself on matters on which you have worked on as SG, and you have worked on this [issue du jour] and advised the President on this haven't you? Wouldn't that mean that you would have to recuse yourself? So there is no risk of prejudging a case, is there? So, you can go ahead and answer the question, so that we may see how you analyze complex constitutional questions. [Ed Note: I know the question is long, but have you ever heard any Senator ask a snappy question?]

SG Kagan: Senator, without knowing the full facts of a case, I cannot say for sure whether I would recuse myself. I also anticipate that even if I would recuse myself on litigations that are pending before the court, that the same issue may arise in a later case. Again, I do not want to prejudge any case and any case ruling would turn on the facts before me at that point. [Ed Note: this could lead to an interesting volley about the recusal standard.]

GOP Senator: Let's assume you are arguing [issue du jour] before the Court as solicitor general, tell me your opinion as SG to whether [statute][action] is constutitional.

SG Kagan: Without a clear question presented and all the facts of a particular case, I cannot outline the arguments I would make as solicitor general. [If Kagan argues that there is some client confidentiality, expect a series of questions on "who is the client of the SG?"]

GOP Senator: But you would clearly argue that the [statute] is constitutional? The President did [sign the statute][take the action]. It is your role to argue for the United States.

SG Kagan: I should underscore that my role as solicitor general is quite different than my role would be as an associate justice should I be confirmed.

GOP Senator: But would you defend [statute] as an advocate?

Ok - timeout - enough playwriting. I'm obviously no Samuel Beckett. (Or maybe my characters are not behaving as I planned and I need to get all post-modern on you, by stepping out of the narrative).

Where is this play going? The "John Yoo Trap" is basically to try to box Elena Kagan to admitting that if she has defended in the past or would defend a the constitutionality of a particular statute/administration decision as solicitor general, she must be implicitly saying she would rule the same way as judge -- that the action is constitutional. Because -- the argument goes -- doesn't she agree with the criticisms of John Yoo (and the US Attorney firing scandal and various other DoJ episodes during the George W. Bush Administration) that a senior DoJ official is in a unique role? That is, she doesn't merely enact the wishes of the President, but must provide counsel and dissuade the President from a course of action she believes to be unconstitutional?

Don't get me wrong, this "trap" is not inescapable. I'd be stunned if Kagan is not confirmed and doesn't perform very well at her hearings. The overally point is that when Solicitor General Kagan talks about the different role she plays as Solicitor General as from a justice, a Republican (or even a Democratic) Senator will likely ask about the arguments levelled against Yoo and other DoJ officials for failing to provide independent counsel that might check the Administration. How much do DoJ attorneys need to make independent decisions on the constitutionality of actions -- particularly on executive power -- versus accept the decision of the President who was elected and empowered under Article II?

The argument that Kagan is different than Yoo because Yoo went far beyond the pale, invites classic questions of line drawing, how do we know when an Administration lawyer is over the line, and who gets to make the call. All of this would be a discussion well worth having. Heaven forbid, we might actually learn something about "the Law" in a confirmation hearing.

[Note to colleagues: don't worry! I am not interested in switching to constitutional law. Financial regulation is plenty fun.]