Litigation

Kagan?s Own ?Confirmation Mess? Coming?

By Peter Hardin

Bring on the platitudes.

When Supreme Court nominee Elena Kagan was younger, she wrote acerbically about the Senate confirmation process. She blasted it as a “vapid and hollow charade” (see Gavel Grab) and asserted that in confirmation proceedings for would-be Justices Ruth Bader Ginsburg and Stephen Breyer, “the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence.”

But it is now 15 years later, and Kagan appears to have begun a retreat from her own statements, according to an Associated Press article. The article cleverly observes that her long-ago review of the book “A Confirmation Mess” is “creating a confirmation mess of its own.”

Democratic Sen. Richard Durbin of Illinois recently met Kagan. He said that he reminded her, “You know, you’re going to have to live by the Kagan standard, which you established.”

Kagan replied, according to Durbin, “Well, the world looks a little different from this vantage point.”

Moreover, when she underwent the confirmation process for Solicitor General earlier, Kagan said she saw things quite differently from the days when she served as a Senate Judiciary Committee staffer.

When Kagan wrote the law review article that was published in 1995, she was unsparing in her criticism. Here is another excerpt:

“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

Senate Judiciary Committee Chairman Patrick Leahy of Vermont recently interviewed Kagan. Leahy he said he talked with her about the book review. “She said, ‘I think I’m probably going to hear that quoted back to me a few times during the hearing,’” Leahy reported.

“I said, ‘Starting with me.’”

A New York Times article, meanwhile, dismisses any fight so far over Kagan’s confirmation as “a yawn,” while leaving the door open to new developments.

The political dynamics of her nomination could shift once the National Archives releases the first documents in a total of some 160,000 pages relating to her time in the Clinton White House, the article said, “including e-mail messages that, some conservatives hope, might reveal a more candid side of the ever-cautious solicitor general.”

To learn more about the nomination process, check out Justice at Stake?s ?Replacing Justice Stevens? page.

Full post as published by The Gavel on June 03, 2010 (boomark / email).