Bench Memos

The Kagan Standard on the Supreme Court Confirmation Process

Given the possibility that President Obama will nominate Solicitor General Elena Kagan to the Supreme Court, it’s worth highlighting that Kagan has set forth in writing her carefully considered views on how the Supreme Court confirmation process ought to proceed.  Those views were formed in part from her service as special counsel to the Senate Judiciary Committee in connection with Justice Ginsburg’s nomination.  Here are quotes (italics added) from Kagan’s 1995 book review of Stephen L. Carter’s The Confirmation Mess, which she published in the University of Chicago Law Review (“Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995)):

If recent hearings [on the nominations of Justice Ginsburg and Justice Breyer] lacked acrimony, they also lacked seriousness and substance.  The problem was the opposite of what Carter describes:  not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.…  When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.  [p. 920]

I suspect that both [Ginsburg and Breyer] appreciated that, for them (as for most), the safest and surest route to the prize [of confirmation] lay in alternating platitudinous statement and judicial silence.  Who would have done anything different, in the absence of pressure from members of Congress?  [p. 928]

The kind of inquiry that would contribute most to understanding and evaluating a nomination is … discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues.…  But responses to … questions [on judicial philosophy] can—and have—become platitudinous, especially given the interrogators’ scant familiarity with jurisprudential matters.…  Hence the second aspect of the inquiry:  the insistence on seeing how theory works in practice by evoking a nominee’s comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces.  [pp. 935-936]

[As for claims that such inquiry would compromise “judicial independence”:]  The judicial independence that we should focus on protecting resides primarily in the inability of political officials, once having placed a person on the court, to interfere with what she does there.  That seems a fair amount of independence for any branch of government.  [pp. 938-939]

[W]hat is worse even than the hearings themselves is … the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate.  [p. 941]