Legal Commentary

Kagan Did ?Just Enough? To Win Specter?s Vote

By Jonathan H. Adler

Senator Arlen Specter (R D-PA) has an op-ed in USA Today explaining his decision to support the confirmation of Elena Kagan to the Supreme Court.  He explains that it was a close call, and that he was deeply troubled by her refusal to answer more substantive questions, but will support her nonetheless.  As he summarizes:

On balance, Kagan did little to move the nomination hearings from the stylized ?farce? (her own word) they have become into a discussion of substantive issues that reveal something of the nominee?s judicial philosophy and predilections.

It may be understandable that she said little after White House coaching and the continuing success of stonewalling nominees. But it is regrettable. Some indication of her judicial philosophy may be gleaned by her self-classification as a ?progressive? and her acknowledged admiration for Justice Thurgood Marshall. That suggests she would uphold congressional fact-finding resulting in remedial legislation and protect individual rights in the congressional-executive battles.

The best protection of those values may come from the public?s understanding through television of the court?s tremendous power in deciding the nation?s critical questions. In addition to her intellect, academic and professional qualifications, Kagan did just enough to win my vote by her answers that television would be good for the country and the court, and by identifying Justice Marshall as her role model.

Full post as published by The Volokh Conspiracy on July 15, 2010 (boomark / email).