Bench Memos

Elena Kagan’s “Vacuity and Farce”—Part 2

Now let’s consider SG nominee Elena Kagan’s second explanation for refusing (again, to borrow her 1995 phrasing) to “engage … in meaningful discussion of legal issues” and for instead having her “confirmation process take[] on an air of vacuity and farce”:

 

Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions of constitutional law (except in areas where I previously have stated opinions), both because those opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation.

 

Kagan’s second explanation has two parts. Her assertion that her “personal opinions of constitutional law … will play no part in my official decisions” is farfetched. As SG, Kagan would be charged with conducting all litigation on behalf of the United States in the Supreme Court and with supervising the handling of litigation in the federal appellate courts. Those tasks involve difficult and delicate strategic judgments that she cannot make merely by implementing predetermined Administration policy or by mechanically applying the principle of defending the constitutionality of any federal statute for which any reasonable argument can be made. Her own views of constitutional law would inevitably influence the judgments she makes, and that is part of why President Obama selected her for the job.

 

Kagan’s assertion that her “statements of opinion might be used to undermine the interests of the United States in litigation” is also weak. Although an opposing party might think it clever to point out that the legal position an advocate is taking in court on behalf of a client differs from a position that person has elsewhere taken, there is no reason that a judge should imagine that that difference has any bearing on the merits of the client’s legal position. Indeed, Kagan herself in her live hearing testimony stated: “I know that [former SG] Ted Olson would not have voted for the McCain-Feingold bill, but he … did an extraordinary job of defending that piece of legislation…. And that’s what a solicitor general does.” In response to Senator Feingold’s joking observation that “I could have sworn he almost was believing what he was saying”, Kagan replied: “For that day he was persuaded, and that’s all you need.” That’s all she would need to do as well.

 

Insofar as Kagan maintains that she is just following the path of “other nominees to the Solicitor General position”, I’d be interested in seeing the evidence. Folks who have reviewed the hearing transcripts for Ted Olson and Paul Clement tell me that they didn’t draw the line she is drawing. (And, of course, the ultimate question is whether Kagan’s positions are sound, not whether they’ve been advanced before.)

 

It also cuts against Kagan that she doesn’t consistently follow either of her stated explanations (that is, the one in Part 1 or the one here). For example, her response to Senator Sessions’ question 6 discusses Bowen v. Kendrick; her response to Senator Specter’s question 5.b rejects the existence of a constitutional right to a minimum level of welfare; and her response to Senator Specter’s question 5.c states that she “fully accept[s]” the Supreme Court’s “longstanding body of law” on obscenity. Kagan’s inconsistent application of her stated principles invites the inference that she is invoking them opportunistically—and that provides all the more reason for senators not to defer to her non-responses.

 

Stay tuned for Part 3, where I will discuss a curious response of Kagan’s that may be more troubling than her non-responses.

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