It's conventional wisdom that Supreme Court nominees have to be opaque and tight-lipped during their confirmation hearings, for fear that any stray comment will be seized and blown out of proportion as an excuse to oppose them. Elena Kagan, unsurprisingly, has followed this model. But does she take it a step too far? Some critics say she has been unusually quiet about her personal and judicial views, saying even less than past Supreme Court appointees. Are they right?
- This Is Getting Extreme The Volokh Conspiracy's Jonathan Adler writes, "I note that Elena Kagan has effectively avoided giving substantive answers that could disclose her views on any legal issue, old or new. She wouldn’t name any justice she considered to be an 'activist' and wouldn’t say whether she agreed with the Declaration of Independence. She also refused to indulge Democratic Senators’ invitations to criticize the Roberts Court, often correcting simplistic caricatures of recent opinions and doctrines."
- Sen. Specter: Hearings Nearly Useless The Legal Times' David Ingram reports, "Specter warned that he was struggling to find a reason not to vote against her. 'You have followed the pattern which has been in vogue since Bork,” he said, referring to conventional wisdom that Supreme Court nominees have been hesitant to say much about their legal views after the nomination of the very substantive Judge Robert Bork failed in 1987. 'It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further.'"
- Specter's Right, but Only Senate Can Change This Outside the Beltway's James Joyner writes, "This is so much farce. Given the tenor of confirmation hearings over the last quarter century, it would have been absurd to expect Kagan to handle the questioning any differently." However, "He’s right about one thing: It's not useful to continue asking questions that all understand in advance won’t be answered. But the ones with the ability to change that are the ones doing the asking."
- Kagan Is Right to Obfuscate
The Atlantic's Clive Crook writes, "She once regretted that the
confirmation process has become so vapid, but when her own came around
she wisely conformed. ... This is not a good-faith process. If the
conscientiously looking for political moderation (which I think they
would be right to require) and a good judicial mind and temperament, it
would be different: she would owe both them and the public substantive
answers to their questions. They aren't, so she doesn't. In fact, she
would be crazy to provide them." The Atlantic Wire's Michael Kinsley makes the case that Kagan should be open.