Politics & Policy

Waffling

In a 1995 law review article, Elena Kagan criticized Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg for failing to answer questions about specific cases during their confirmation hearings. But she has since changed her mind:

[D]uring a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.

Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.

“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

“You will see before the committee that she walks that line in a very appropriate way. She will be forthcoming with the committee. It will be a robust and engaging conversation about the law, but she will obviously also respect the conventions about how far a nominee should or shouldn’t go in answering about specific legal questions,” Klain said.

During her confirmation hearing on Feb. 10, 2009, Kagan was questioned about her 1995 law review article by Sen. Orrin Hatch, Utah Republican, who restated to Kagan the position she took about the need for answers to specific questions, and expressed concern that this would violate the judicial obligation to impartiality.

“I’m not sure that, sitting here today, I would agree with that statement,” Kagan said, referring to her own opinion from 14 years prior.

“I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated that I really wasn’t understanding completely what the judicial nominee in front of me meant and what she thought,” Kagan said, referring to her time on Biden’s staff in 1993 when he was chairman of the Senate Judiciary Committee.

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