Elena Kagan’s testimony is now over, and don’t know much more about her than we did before. This, of course, is deliberate. Kagan took obfuscation and dissembling to a new low. She declined to answer many questions and said little or nothing when she did give answers. In a 1995 article on Stephen L. Carter’s outstanding book The Confirmation Mess, Kagan posited that judicial nomination hearings lacked both “seriousness and substance,” so that “the confirmation process takes on an air of vacuity and farce.” Farce, you say? We couldn’t have called it better ourselves.
Kagan was not forthright about the assistance she provided, as a Clinton White House aide, to the American College of Obstetricians and Gynecologists in 1995, when the group came out against the partial-birth-abortion ban. Her defense of her banning military recruiters, as dean of Harvard Law School, was downright embarrassing. She claimed to be attempting to balance her obligation to uphold the school’s nondiscrimination policy with the legal obligation of the Solomon Amendment, which forbade institutions who receive federal funds from kicking military recruiters off campus. As Sen. Jeff Sessions correctly pointed out, she could not do both, and in the end did not. Her testimony was disingenuous at best and misleading at worst. Little wonder that Arlen Specter threatened to vote against her nomination in protest. (Now he decides to do the right thing.)
More is on the line than the fate of the Kagan nomination. No nominee since Robert Bork’s inhumane mistreatment in 1987 (and certainly not since Clarence Thomas was similarly subjected to outrageous charges in 1991) has dared to be forthcoming to the Judiciary committee. For conservatives nominees, the confirmation process is a search-and-destroy mission. For liberals, it’s an exercise in dissembling followed by relatively smooth sailing.
The Wall Street Journal said Kagan’s testimony amounted to “variations on ‘what part of maybe do you not understand?’” The New York Times added: “The frustrating lack of enlightenment was hardly surprising given how this process has deteriorated since the Robert Bork hearings in 1987. Not only are nominees reduced to platitudes about upholding precedents, but even the platitudes are porous.” That is called consensus.
What to do? The Senate needs a new dynamic of confirmation, one in which senators ask real questions, nominees provide genuine answers, and prospective judges are confirmed unless they lack strong legal qualifications, an even judicial temperament, and mainstream jurisprudential views. This is how the confirmation process worked until judicial activism made federal judges legislators-for-life. The radical Left corrupted the process with the vow to “bork” nominees who didn’t share their extreme views. Decades of this has resulted in a thoroughly broken and dispiriting confirmation process. It is badly in need of repair, and we need a new president and a new Senate to take up the challenge mantle and reform it.
– Ralph Reed is the chairman of the Faith & Freedom Coalition and author of The Confirmation.