According to this New York Times article today, Harvard law school dean Elena Kagan, President-elect Obama’s pick to be Solicitor General, “has provided few clues about where she stands on the great legal issues of the day.” Both because of the position that she will be nominated for and because that position is seen by many as a stepping stone on her path to a Supreme Court nomination, it is important that Senate Republicans use her confirmation hearing to flesh out her legal views.
As the Times article points out, Kagan herself has called for the Senate to use confirmation hearings “to engage nominees in meaningful discussion of legal issues.” In her 1995 review (62 U. Chi. L. Rev. 919) of Stephen L. Carter’s The Confirmation Mess, Kagan argues that the “critical inquiry” that the Senate should conduct on a Supreme Court nominee “concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution.” Kagan draws as “the fundamental lesson of the Bork hearings … the essential rightness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments.”
Although Carter’s book and Kagan’s review focus heavily on Supreme Court nominees, they also address DOJ nominations (especially Clinton’s 1993 nomination, subsequently withdrawn, of Lani Guinier to be AAG for Civil Rights), and Kagan’s view of the Senate’s role applies fully to those (and other executive-branch) nominations. That, of course, is hardly surprising, as the case for careful scrutiny of the legal views of DOJ nominees, even if combined with greater deference to the president, seems widely accepted.