Washington Matters


Kagan's Testimony Assures Confirmation

Richard Sammon

She'll be confirmed with votes to spare, but we won't know much about her for years.



Here’s your advance play-by-play of the Senate floor debate on Elena Kagan coming later in July: Republicans will warn the Senate is voting almost blindly on a lifetime Supreme Court appointment, and they’ll argue that Kagan was deliberately short of forthcoming in her testimony about what kind of judge she’ll be and that she has no prior experience as a judge. Democrats will say Kagan displayed deep knowledge and history of the law and the Courts and held her ground admirably in lengthy Judiciary Committee hearings and that her lack of judicial experience should not disqualify her.

Both will be right. The former Harvard Law dean and the current solicitor general, Kagan nearly ran circles around committee members, citing case studies and precedents and sprinkling her answers with legal arcana. All the while, Kagan strategically deflected dozens of pointed questions, mostly from Republicans but from some Democrats, too, on her personal legal opinion and philosophy.

She steered largely clear of expressing personal views on sensitive topics such as abortion, guns, legislative intent, campaign finance, interstate commerce and such. The standard line used by Kagan, and most modern Court nominees for that matter, is that they don’t want to publicly prejudge a legal subject or case that may come before them one day.

Smart move from the nominee’s perspective. It’s a trump card that can get them out of a tough corner quickly in a nomination hearing. Kagan had the double advantage of being able to say in regard to cases she has argued before the Supreme Court that she was only advocating on behalf of the government as solicitor general, not herself. She was able to nearly fully avoid offering personal views on major issues, except to discuss the legal background of the issues.

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From her point of view, it was probably smart. She can weather some criticism that she wasn’t fully forthcoming, even though years ago she wrote articles urging Court nominees to be just that.

She has enough general support at the outset to win confirmation. The Judiciary Committee, where Democrats have a 12-7 advantage, will easily confirm her, and Republicans won’t be able to block the nomination on the floor. They won’t even try, in fact, preferring to agree to several days of debate, allowing opponents to make speeches for the record. She’ll end up being confirmed with 70 or more votes.

It may take years, however, and a series of major Supreme Court decisions, especially split decisions, before we’ll be able to accurately size up Kagan and her ultimate influence on the Court.

She’ll be on the Court for the fall session, but she’ll be recusing herself from possibly dozens of cases the Court will decide that she litigated as solicitor general, including labor and interstate commerce cases. The conventional belief is that she will be a reliable liberal vote, much like retired Justice John Paul Stevens or the late Justice Thurgood Marshall, for whom she clerked. That may be true, but no one entirely knows, and she certainly didn’t say. It may also be true that she is able to build bridges on the Court with conservatives such as Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito and be pivotal in helping influence decisions and appealing to Justice Anthony Kennedy, who is emerging as the Court’s swing vote. That sort of bridge building takes years to accomplish, though.

One thing is clear from the hearings: Figure on plenty of question marks about Kagan. She’s figured out the right balance to get confirmed -- be forthcoming and open about legal philosophy and opinion, but only to a degree. Forthcoming enough to not be accused of stonewalling, but not so much as to unleash a torrent of debate on red-hot legal topics. It’s the right path for the nominee, but the public and the Senate are lesser for it, left with more questions than answers from the careful dance that all nominees now perform before the Judiciary Committee.

Republicans have a point that the Senate will be rolling the dice in confirming Kagan. Democrats should acknowledge as much. But they feel they did the same with Roberts and Alito. Many feel what little they thought they learned in their hearings -- including assurances to respect precedent -- turned out to be wrong. But that’s the nature of the process. It will be the rare senator who can accurately say he or she is fully informed before voting on the Kagan roll call.




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