Legal News

A Reticent Elena Kagan Reverses Course on 1995 Statement

By Ashby Jones

Washington Post writer Robert Barnes has a funny little piece out today on Elena Kagan, the Harvard Law Dean who’s been tapped to serve as President Obama’s Solicitor General.

Barnes managed to sleuth out an interesting little (and we do mean little) skeleton on Kagan’s closet: She once wrote that nominees should answer questions from senators. As Barnes puts it:

And in no uncertain terms, either. Reviewing Stephen Carter’s book “The Confirmation Mess” for the University of Chicago Law Review in 1995, Kagan opined that “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.” She thought that executive branch nominees, “for whom ‘independence’ is no virtue,” really deserved to be grilled.

According to Barnes, Kagan isn’t exactly practicing what she preached.

During her confirmation hearing, Republicans tried unsuccessfully to get Kagan’s personal opinion on, among other issues, about whether the court had correctly ruled in striking the District of Columbia’s handgun ban; about a Louisiana case in which the court said the death penalty was not appropriate for someone who raped a child; and about capital punishment.

Kagan’s reticence wasn’t appreciated by Republicans. Sen. John Cornyn said that, despite Kagan’s praise for the Senate’s institutional role in the nomination process, “her refusal to answer legitimate and relevant questions posed by me and others belies this claimed respect.”

Her reluctance to talk may have cost her the support of six of the eight Republicans on the Senate Judiciary Committee yesterday as members moved her nomination along to the full Senate. Sen. Arlen Specter (Pa.) and two other Republicans passed on the vote, while three voted no. The vote was 13 to 3.

For her part, Kagan tried to explain away her earlier comments, made over a decade ago. “I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”

“I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions,” she repeatedly said.

Full post as published by Law Blog - WSJ.com on March 06, 2009 (boomark / email).