Bench Memos

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Will Kagan’s Hearing Be a ‘Charade’?


In her now infamous 1995 essay “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995), Elena Kagan expressed the view that Supreme Court confirmation hearings had become a “vapid and hollow charade” because nominees studiously avoid answering direct questions about their views of specific constitutional issues. Nominees say little about their judicial philosophies beyond empty platitudes.

Most of us have assumed that Kagan would adopt a different view once she herself is before the Senate Judiciary Committee, particularly since White House aides have said as much and she was not particularly forthcoming in her confirmation hearings to be solicitor general. Yet according to this report by Jan Crawford, Kagan told Sen. Arlen Specter that she still holds the views she expressed in her 1995 article and she told Sen. Herbert Kohl that she wants her hearing to be a “teachable moment.” If so, we could be in for an interesting set of hearings.


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