Judge Not: Kagan's Short Paper Trail May Aid Supreme Court Bid

Elena Kagan's short paper trail may be an advantage in the confirmation process.

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In a book review she wrote in 1995, Elena Kagan, then an assistant professor of law at the University of Chicago, took a hard swipe at what had become routine practice for confirming nominees to the Supreme Court. The hearings, she wrote, had acquired "an air of vacuity and farce," with nominees regularly stonewalling the Senate Judiciary Committee and senators greeting "their 'nonanswer' answers with equanimity and resigned good humor." Ever since Ronald Reagan-nominee Robert Bork had been harshly rejected by the Senate in 1987 after sharing his views on abortion, she noted, nominees have gone to great lengths to not reveal very much. As Kagan concluded, for subsequent nominees "the safest and surest route to the prize lay in alternating platitudinous statements and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress"?

It is a fascinating question that now looms over Kagan herself, the current U.S. solicitor general who was nominated by President Obama last week to fill the vacancy on the high court created by the retirement of Associate Justice John Paul Stevens. Yet so far, she has done little to indicate that she intends to diverge from the tight-lipped practices of recent predecessors. Last Wednesday, she made her first rounds on Capitol Hill, meeting with Senate Majority Leader Harry Reid, then with Minority Leader Mitch McConnell. She smiled a fair amount, nodded a fair amount, looked around a fair amount, but said almost nothing publicly, other than that she was having fun.

As Kagan noted in her 1995 review, the Senate confirmation process should serve two purposes: first, to give senators a chance to evaluate nominees; and second, to educate the public. In Kagan's case, these purposes are arguably even more important because so little is known about the type of judge she would be. Her biography is impressive and, as Richard Lazarus, a director of the Supreme Court Institute at Georgetown University law school notes, not entirely surprising. She is the third nominee in a row—following Samuel Alito and Sonia Sotomayor—to have attended Princeton. She joins every other colleague on the bench as having graduated from Harvard or Yale Law School (she went to Harvard). From there, she bounced between major power centers—clerking for Justice Thurgood Marshall, working for the Clinton White House, teaching at elite law schools, serving as the first female dean of Harvard Law School. "This is someone whose career is marked, in the first instance, by fabulous performance in law school who then does all the things that fabulous law students go on to do," Lazarus says.

Which is not to say that she is a conventional pick. She has never been a judge, which sets her apart from the current members of the court (the last non-judges seated were William Rehnquist and Lewis Powell, both in 1972). One consequence is that she has accumulated a short paper trail, and what she has written tends to be rather theoretical. One paper that will surely garner attention, though, was published in 2001, shortly after she left the Clinton White House, in which she reflects on how the Clinton administration managed to increase its power over government agencies by requiring more White House oversight of everything from Medicaid to education regulations. The paper, says Stephen Wermiel, an expert on the Supreme Court at American University's law school, is subtle. But, he says, "I think it will be a subject of discussion during her confirmation because it really does describe a heightened version of presidential power. I think it will be something of great interest to the Senate." That said, Kagan wrote the paper before the 9/11 attacks and the George W. Bush administration's expansion of presidential power to carry out its war on terrorism. "She is obviously writing about the years before the Bush presidency, but those lines may blur in the Senate Judiciary Committee," Wermiel says.

In recent years, these hearings have been increasingly marked by what Kagan once decried as a "dearth of substantive comment," with nominees declining both to talk about specific cases, out of concern that such a case might come before them, or to address questions about their general judicial philosophy, saying that they would need to see the specifics of a case. If Kagan were to follow the advice she laid out earlier, she would likely provide the Senate with a "serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee." But it seems that she has already begun to back away from that statement. During Kagan's confirmation hearing last year for solicitor general, Utah Republican Sen. Orrin Hatch asked her if she stood by her 1995 statement that confirmation hearings should involve "discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues." To which she replied: "I'm not sure that, sitting here today, I would agree with that statement."