Kagan Invites Bork-Style Confirmation Hearing

In 1995, while Elena Kagan was an Assistant Professor of Law at the University of Chicago, she wrote a review about Stephen Carter’s book, The Confirmation Mess. Carter’s book, of course, was highly critical of the confirmation process and identified numerous ailments, including most famously, the handling of the confirmation hearing of Robert Bork.

Kagan begs to differ. The Bork confirmation hearing did not create a mess, she argues, it served as a model. There are few questions that are inappropriate. The President and the Senate have a constitutional duty and they should take it more seriously. The approaches taken by Justices Breyer and Ginsburg in their confirmation hearings were seriously flawed. The bottom line, she argues, is that the approach taken by the Senate with Robert Bork was fair game and that future nominees should be required to answer more searching and substantive questions:

The real confirmation mess, in short, is the absence of the mess that Carter describes. The problem is not that the Bork hearings have set a pattern for all others; the problem is that they have not. And the problem is not that senators engage in substantive discussion with Supreme Court nominees; the problem is that they do not. Senators effectively have accepted the limits on inquiry Carter proposes; the challenge now is to overthrow them.

She further argues that nominees should not be given the easy pass that Justices Ginsburg and Breyer received from the Senate. “The way to promote reasoned debate thus lies not in submerging substantive issues, but in making them the centerpiece of the confirmation process.” A nominee should be required to describe her “judicial philosophy” and to avoid abstract platitudes; she should be required to describe “how theory works in practice by evoking a nominee’s comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces.”

In short, Kagan argues that the questions Bork received should be viewed as necessary and proper and that nominees should stop playing the game of obfuscation and respond forthrightly the way Bork did:

The President and the Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument…. A nominee can say a great, great deal before making a statement that … nears the improper. A nominee … usually can comment on judicial methodology, on prior caselaw, on hypothetical cases, on general issues like affirmative action or abortion. To make this more concrete, a nominee can do … well, what Robert Bork did. If Carter and recent nominees are right, Judge Bork’s testimony violated many times a crucial norm of judicial conduct. In fact, it did no such thing; indeed it should serve as a model.

Good to know.