Thursday, July 1, 2010

Thoughts on Kagan and the Confirmation Process: Creating Potted Plants

So what did we learn about Elena Kagan during her confirmation hearings? Precious little beyond the vaguest of generalities is my impression.

For three days the Senate Judiciary Committee held confirmation hearings for Kagan. I listened to most of them and commented on them for Minnesota Public Radio (you can listen to the interview here). There were two items that most struck me about the hearings. First, that the hearings were not about Kagan. Second, Kagan gave us no more than textbook answers or that any opinion she held or view expressed was disavowed.

The hearings were really perfunctory. Kagan was going to be confirmed. Her appearance was a pretext for other political agendas. Thus, speeches by the Senators were previews of the 2010 election, or efforts to make news back home, or posturing for constituencies. But bring together that this is an election year, she does not change the balance of power on the court, she worked in the Obama administration, and she said nothing, the combination is a recipe for the hearings to be political posturing. That is what we received. This is no different than many other hearings in the past, but some thought it would be different given Kagan’s criticism of vacuous confirmations in the past.

Kagan recanted on her demand for candor. Some of this is understandable, potential justices have to be wary of saying too much, less they prejudge cases that compromise their integrity. This is a legitimate concern. But there is also the political demand to say very little to make it possible for senators to vote for you–or at least not against you. And then there is a demand to be open and answer questions in order to educate the public and allow the Senate to do its constitutional duties. All three need to be balanced and the trend now seems to be to say little.

But having said that, what struck me as odd was the number of times, when pressed about an issue or asked about a case or something she wrote, Kagan said that she had not read the decision, that she was simply working for the president, or the views did not express her own. She also seemed to say she did not have opinions on certain subjects or that her mind was open. I find all of this hard to believe. She is a well educated ivy league law professor, former Harvard Law School dean, and solicitor general. She could not have gotten that far without forming her own opinions on many legal matters.

I teach law. I read cases and opinions and I am expected to have digested them. I would be remiss if I did not. I find it hard to believe she has not read or formed opinions about so many of the things she was asked about. It reminds of how when Clarence Thomas, when asked at his confirmation hearings, whether he had read Roe v. Wade (the abortion case), and he said he had never discussed it in law school. This is hard to believe given that Roe was decided while he was in law school! Thus, for Kagan, as well as Thomas, they seemed not to be doing something that I would expect of every good lawyer or law professor–read, think, and form opinions about the law.

Moreover, Kagan gave textbook answers to so many questions. These were answers we teach in law school as almost rote answers. For example, always try to avoid deciding a constitutional question and decide on statutory grounds. If making a statutory decision, do xyz. Kagan repeated this mantra.

My criticism is not totally on Kagan but on the process of judicial selection. The confirmation process is a charade, but judicial elections are equally empty in terms of what we learn about judicial candidates. I am not sure there is a good way to select judges in ways that provide meaningful information about them, whatever “meaningful” should signify. We want accountability but in a democracy that is majority rule balanced by respect for minority rights, and where judges are supposed to assist or take a primary role in striking that balance, I am not sure what judges should be allowed or encouraged to discuss.

But one thing is certain. In 1986, in commenting on the Bork confirmation, Judge Richard Posner said judges are not potted plants. They are learned, have views, and exercise discretion. Supreme Court Justices should not be potted plants, but the confirmation hearings encourage them to act like that.

Final note: One caller to MPR asked me if I was troubled about the fact that all the justices now are east coast, Ivy League Harvard types. Even though I am from NY, I said yes. While the nine justices do differ in many ways, they (and the Obama and before that the Bush administration) represent a narrow band of elites. Senator Feingold caught it well on Tuesday when he asked Kagan how she could understand the plight of those in Stevens Point. She said she could. I doubt any of the justices or most of the Obama or previous Bush Administration could. Senator Franken caught it well when he discussed how the Court has a real impact on the lives of real people. His speech was a plea that we need to remember real people. I fear this Court and Ivy covered world from which they come cannot do that.

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