Bench Memos

Borking Elena Kagan

A long time ago (the mid 1990s), in a land far, far away, Elena Kagan was a mere assistant professor. Writing in The University of Chicago Law Review, she penned a review essay of Stephen Carter’s book The Confirmation Mess. She disagreed with Carter about many things, including the idea that a nominee must have appellate experience. Rather, she presciently suggested, a nominee may “demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some kind.”

She also forcefully argued that confirmation hearings cannot limit themselves to a nominee’s “technical qualifications.” Instead, because of the nature of the moral-political questions with which the Court concerns itself, citizens cannot help but be interested in the particular conclusions the Court reaches. She assumed (without apparent doubt or a sense of the philosophical and jurisprudential weightiness of her claim) that judging comes down to “conceptions of value.” But in so doing, she explicitly longed for confirmations that are more, rather than less, like the Bork hearings, which offered the public “a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee.”

While “craft values” — cleverness at things like legal writing and reasoning — are important, “the bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country.” A crafty justice like Scalia — despite his “ultimate wrong-headedness” — can advance legal inquiry, but it is wrong-headedness, rather than mastery of the judicial craft, that should be central to the questions of senators. She counsels “open exploration of the nominee’s substantive views . . . not the objective qualifications or personal morality of the nominee.”

In this way, “ciphers,” who might be nominated to the Court on the basis that they are the least offensive to the greatest number, cannot get away with anything. Senators have an obligation to see “how theory works in practice by evoking a nominee’s comments on particular issues — involving privacy rights, free speech, race and gender discrimination.” To these, let us add the Second Amendment, same-sex marriage, and federalism. And may attentive senators hold Solicitor General Kagan to her own argument, and insist that she give them — and us — specific answers. It would undoubtedly prove fruitful to quote the wrong-headed Scalia, and insist that Kagan detail exactly how and why he is so wrong-headed.

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