Kagan to World: Don’t Ask Me Anything Revealing!

by Kevin Jon Heller

Roger blogged below about how Kagan called in 1995 for substantive questioning of Supreme Court nominees.  Just in time to avoid being asked such questions herself, she’s changed her mind:

The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

Kagan wrote in 1995 that the confirmation process had become a “charade” because nominees were not answering direct questions, and said they should have to do so.

But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.

Klain pointed to Kagan’s testimony during confirmation hearings for her current job as solicitor general, the government’s top lawyer.

“She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

What a pathetic charade on Obama’s part.  Appoint someone who has no paper trail.  Have her “change her mind” about being asked anything to offset said lack of paper trail.  Ask progressives to trust you that you know what you’re doing.

I, for one, don’t trust Obama in the least.  I’m obviously disappointed that he is foregoing a once-in-a-generation opportunity to place a genuine progressive on the Court in favor of nominating someone that the right thinks is the least-bad option.  But I’m not surprised.  Will Kagan move the Court to the right on national-security issues?  It certainly seems that way.  Is that a bad thing from Obama’s perspective?  Not a chance.  He will almost certainly be President for another six years; do you think he wants a Justice who will follow in Stevens’ footsteps and limit his ability to detain and kill people?

Do I even need to answer that question?


3 Responses

  1. I was initially very worried about Kagan because of her purported stance on Executive Power in the national security context, but I’ve since been persuaded that the claims being made about her thoughts on Executive Power are unsubstantiated and misleading.  Tom Goldstein, at SCOTUSblog, provides a more nuanced assessment:


    This is not to say that those of us that believe that judicial review justifies itself in large part by constraining executive action should be relieved.  It just means that we should be less alarmed.  In any event, we should definitely not repeat the mainstream media’s misleading statements on her. 

    I would also encourage a move away from the progressive-conservative dichotomy in discussing the merits of judicial nominees.  Politics is important in judging, but jurisprudential philosophy, which is not necessarily animated by one’s politics, is more important.  Will Kagan be a Posner/Breyer-style pragmatist?  A new wave, progressive originalist?  A process theory-based jurist?  These questions are probably more useful for assessing the long-term impact that Kagan’s presence on the Court will have on the progressive movement.

  2. I agree with Raha.  The use of labels as shorthand stamps of approval or disapproval (depending on the person using them) is truly unhelpful.  I cringe at the use of all labels in legal discourse, such as “progressive” or “judicial activist.”  Their precise meaning is often unsettled/ambiguous.  Therefore, one must know the personal views of the speaker/writer before these labels effectively communicate a message rather than merely stimulate a reaction from the hearer/reader.

    Then again, for the average American (and many lawyers) I suspect that revealing the best label for a nominee’s jurisprudential philosophy also means nothing.  The value in the confirmation process is lost if the people’s representatives are unable to receive meaningful answers to meaningful questions in terms that at least a substantial segment of “the people” understand.

    This assumes, of course, that the people’s representatives will ask meaningful questions rather than engage in political grandstanding.  If recent history is any example, that seems unlikely for a great many of those representatives.

    In a country where divisive labels are all the rage among “journalists”/pundits, I think it wise for scholars and other experts to provide balanced analysis in terms that effectively communicate to the public at large. If we sink to the level of others or talk in terms that only we understand, we do no service to the law or the legal system that we serve.

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