Elena Kagan is the Ultimate Stealth Nominee to the Supreme Court

By Peter Roff, Thomas Jefferson Street blog

In U.S. Solicitor General Elena Kagan, President Barack Obama has found the ultimate stealth nominee. Typically, the judicial confirmation process for those selected for the U.S. Supreme Court consists of an examination of a nominee’s prior legal decisions, speeches, articles written for prominent legal journals, and other examples, presumably, of their thinking about the law and the U.S. Constitution.

Kagan, the former dean of the Harvard Law School, is a policy wonk and an academic with very little practical legal experience. As a result, the record available for examination is very thin.

Having never been a judge there is no way to measure her judicial temperament. Having never been an elected official she does not have a voting record that can be studied for clues about her thinking. The articles she has written for publication, while well-argued, are not so numerous that it presents anything close to a complete picture of the kind of justice she might be if confirmed. 

Despite this, or because of it, President Obama says he wants the Senate to put a rubber stamp to her nomination and confirm her quickly, likely because he expects her to be a rubber stamp for his agenda should it come before the court. That aside, Kagan deserves a fair hearing, a fair but deliberative one.

The question is what standard shall be used to measure her potential fitness as a justice. Without much substance to go on, the members of the Senate may need to come up with a new standard by which she can be measured. In that, Kagan herself points the way.

Back in 1995, Kagan proposed a new and different standard that the Senate should consider now embracing:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution.

In the past it has been considered unacceptable to ask a potential nominee how they might rule in specific cases that may come before them. In those cases the nominees had established some kind of record from which senators could base their decisions to vote for or against a nominee. In the absence of such a record in Kagan’s case it is quite acceptable to ask her how she might vote on key issues, how she thinks her presence on the nation’s court might shift its delicate balance and whether or not she would feel compelled to remove herself from cases involving issues she had worked on in either the Clinton or Obama administrations. Kagan herself has said so.

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