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Litigation

: The Gavel

Kagan Hearings: A Lost Opportunity?

By Peter Hardin

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The Senate confirmation hearings for Supreme Court nominee Elena Kagan presented this week a good opportunity for teaching the public about judges interpreting the Constitution–and it was lost, suggests a Pulitzer Prize-winning court reporter.

In the Opinionator blog of the New York Times, Linda Greenhouse writes the following about Solicitor General Kagan and the senators who grilled her:

“I’m left with a feeling that a hearing like this represents a lost opportunity for the public to actually learn something about how judges think about what the Constitution means.

“Ms. Kagan declared early on that ‘it wouldn?t be appropriate for me to talk about what I think about past cases ? you know, to grade cases ? because those cases might again come before the court.’

“If any senator directly challenged that premise, I missed it. It deserves to be challenged, not only because it cuts off a fruitful line of questions, but because it isn?t logical.”

A different, broader critique of the hearing process was offered by a San Francisco Chronicle editorial, headlined “Kagan sails, quietly, through confirmation.”

The editorial commends Kagan for the court but assails “the bob-and-weave that goes with the hearing process. Over the last half dozen similar confirmation sessions, the process has congealed into empty and rehearsed phrases from the nominee and overblown rhetoric from senatorial inquisitors hoping to break through the facade. Both sides in this sideshow play their roles, and banality beats substance every time…[T]he chance to educate, debate and even entertain were passed up again with the Kagan hearings.”

These were among the first reviews of the hearings, and more are coming. In Slate, for example, Dahlia Lithwick provides an alternative perspective on the hearings as reflecting each political party’s competing “sense of the sweep of constitutional law, history, and vision.”

A Wall Street Journal editorial, on the other hand, is devoted in its entirety to the idea that in the hearings, “Senate Democrats seemed preoccupied with refighting the 2005 nomination of Chief Justice John Roberts.”

In a Washington Post column, lawyer Thurgood Marshall Jr. views the hearings as sort of a “rehearing” on the confirmation of his father, the late Supreme Court justice, who was criticized by some Republicans this week. Kagan clerked for Justice Marshall.

A New York Times article portrays the questions depicts Kagan’s answers to senators’ questions as a “tutorial on Congressional responsibility” for writing better laws.

The hearings are over, and a committee vote is tentatively set for July 13. On Friday, Republican Sen. Orrin Hatch of Utah, a member of the Judiciary Committee, said he would vote against Kagan. Hatch had supported for the post of solicitor general.

?Over nearly 25 years,” Politico quoted Hatch as saying, “General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. I was surprised when she encouraged us at the hearing simply to discard or ignore certain parts of her record. I am unable to do that,? he said. ?I also cannot ignore disturbing situations in which it appears that her personal or political views drove her legal views.?

You can learn background about Kagan and her nomination from Gavel Grab and Justice at Stake?s ?Replacing Justice Stevens? page.

Full post as published by The Gavel on July 02, 2010 (boomark / email).