Bench Memos

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Elena Kagan’s “Vacuity and Farce”—Part 1


Solicitor General nominee Elena Kagan’s recent responses—in large part, non-responses—to senators’ written questions have turned her confirmation process into something of a farce. You don’t need to take my word for it. Take Kagan’s:


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.


So wrote Kagan in her 1995 review (62 U. Chi. L. Rev. 919) of Stephen L. Carter’s The Confirmation Mess. In that review, Kagan argued for the Senate to engage in more rigorous exploration of the legal views of Supreme Court nominees—more akin to the careful scrutiny of Department of Justice nominees that has long been widely accepted. And Kagan wasn’t simply calling on senators to ask probing questions: she faulted them for permitting Supreme Court nominees Ruth Bader Ginsburg and Stephen Breyer to “decline to disclose their views on controversial issues and cases” and to “stonewall[] the Judiciary Committee to great effect”.


Let’s set aside for now the merits of Kagan’s views on how Supreme Court confirmation hearings ought to proceed. What is galling—and what ought to be unacceptable—is that Kagan, as the SG nominee, is now seeking to transform her confirmation hearing for a senior position in DOJ into the same “vacuity and farce” that she decried.


In her responses (available here) to written questions submitted by senators asking her views on important legal issues, Kagan repeatedly—on some 17 questions, by my quick count—refused to provide an answer. She offered two overlapping explanations (and variants thereof) for her refusal. Here’s the first one:


The Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were correctly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General. In the position of Solicitor General, I would not frequently or lightly ask the Court to reverse one of its precedents, and I certainly would not do so just because I thought the case wrongly decided.


I don’t see how this explanation makes sense. If Kagan believes that a particular Supreme Court decision was correctly decided (and it’s difficult to believe that’s not the case with some of the cases she refused to discuss), how could saying so show disrespect for that precedent and for the principle of stare decisis? Conversely, if she believes that a decision was incorrectly decided, why doesn’t her lavish statement of respect for even wrongly decided cases demonstrate ample (if not excessive) respect for stare decisis?


In my Part 2 post, I’ll address Kagan’s second explanation for declining to (as she put it in 1995) “engage … in meaningful discussion of legal issues”, and I expect to have a further post or two about her responses to written questions.

Tags: Whelan


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