Elena Kagan's Supreme Court Confirmation Hearings--What to Watch

Here are five things to keep an eye on to keep things interesting.

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The roughly six weeks since President Obama announced Solicitor General Elena Kagan as his Supreme Court nominee have brought an only-in-the-Communications-Age flood of Kagan-alia. You can go online and read thousands of E-mails from her days in the Clinton administration. Or you can read a slew of profiles and close examinations of each of her public utterances and writings.

Here's what we've learned: Barring an extraordinary Judiciary Committee meltdown this week (something along the lines of saying in plain English that the Constitution means whatever she wants it to), Kagan will be confirmed. The electronic blizzard hasn't changed the fundamental nomination calculus. There are a lot more Democrats than there are Republicans in the U.S. Senate. The biggest endgame question may be how many GOP-ers pointedly hold their noses and declare that while yes, Kagan is dangerously liberal, they will magnanimously give the president his due deference.

But even if the conclusion seems foregone, the process will not be without meaning. Here's what to watch and why:

[See a slide show of 5 things to watch during Kagan's confirmation hearings.]

Chess or charades? Perhaps the most riveting, and most important, issue will be whether she'll put her career where her mouth is (or more accurately, where her pen was). Then-University of Chicago Assistant Professor of Law Kagan wrote a 1995 law review article in which she lamented the "vapid and hollow charade" that confirmation hearings became after Robert Bork's failed 1987 nomination. Since then, nominees have dodged substantive questions about their view of the Constitution, claiming that doing so would inappropriately impinge on their ability to subsequently judge cases. Kagan argued that rather than cooperating with this string of stealth nominees, senators should press them on judicial philosophy. So is Kagan willing to risk a seat on the high court in service of that principle? It's a fundamentally important question because her critique is correct. The high court is too potent an institution to vest its powers in a series of justices whose greatest asset is their dogged opacity. If Kagan can successfully engage the senators in a philosophical chess match rather than a Kabuki charade, it could positively alter the tone of future confirmations.

A justice, not a judge. Part of the reason substantive discussion of Kagan's views will be so crucial is that, unlike every current member of the court, she has never been a judge. The idea of bench experience as a necessary qualification for serving on the high court is growing; some conservatives argue that it gives Kagan a Harriet Miers-like experience problem. That notion should be nipped in the bud. Justices have historically come from all walks of public life (91 of the nation's 111 Supreme Court justices had political experience, though no one on the current court does) and that diversity of background has helped the court and grounded it in the real world. Kagan has never run for office, alas, but her confirmation would help keep the court from becoming a judges-only club.

Party of "meh." Yes, the GOP will put up a fight. We'll hear about Kagan's experience (or lack thereof) and about how when she was dean at Harvard Law she was mean to those poor old Army recruiters. But barring an impolitic confirmation comment, it will all be a journey through the motions. Kagan just isn't a pressing issue. "Do you think I've paid any attention to Elena Kagan for the last few weeks?" says one Republican operative. There's a smart political calculation here. GOP-ers know that their base is animated over spending and debt and that the press is focused on the BP oil spill (one wonders if the Kagan hearings will play alongside the spill-cam on the cable networks). Why waste energy and give the Democrats another "party of no" talking point by fighting the inevitable replacement of one liberal justice (John Paul Stevens) with what they see as another?

How imperial the presidency? The most heat Kagan gets from the left concerns her views regarding executive power. The fear, as the American Prospect's Adam Serwer put it last month, is that she is "John Yoo with wide lapels," referring to the controversial George W. Bush administration lawyer. She has enough of a record for allies and skeptics to produce evidence to bolster their view. She wrote in favor of an assertive executive in 2001, but noted that clear congressional intent "is the end of the matter." She blasted the Bush-Cheney imperial overreach in 2007 but endorsed a broad view of presidential wartime powers during her nomination for solicitor general in 2009. She seems to lean in a Rooseveltian direction, that executive power can be used to further progressive ends. That's fine, but her views here bear further elucidation. The bottom line: While uneven, the trend over the last decade has been toward a dangerously empowered executive. The extent to which she would abet that is important.



Corrected 6/28/10: An earlier version of this article incorrectly spelled retiring Justice John Paul Stevens's name.