Nominee for Solicitor General Revises Her Opinion on Opinions

Elena Kagan, Harvard University law school dean
Elena Kagan, Harvard University law school dean (Kathleen Dooher - AP)
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By Robert Barnes
Washington Post Staff Writer
Friday, March 6, 2009

Perhaps every nominee committed a dark, regrettable act in the past that he or she hopes will never see the light, but unfortunately for Elena Kagan, hers was discovered pretty quickly after she was nominated to be solicitor general:

She once wrote that nominees should answer questions from senators.

And in no uncertain terms, either. Reviewing Stephen Carter's book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

She thought that executive branch nominees, "for whom 'independence' is no virtue," really deserved to be grilled.

Those statements apparently are no longer operative.

But they did, in part, cost her the support of six of the eight Republicans on the Senate Judiciary Committee yesterday as members moved her nomination along to the full Senate. Sen. Arlen Specter (Pa.) and two other Republicans passed on the vote, while three voted no. The vote was 13 to 3.

Republicans tried unsuccessfully to probe Kagan's personal opinion, among other issues, about whether the court had correctly ruled in striking the District of Columbia's handgun ban; about a Louisiana case in which the court said the death penalty was not appropriate for someone who raped a child; and about capital punishment.

Sen. John Cornyn (R-Tex.) said that, despite Kagan's praise for the Senate's institutional role in the nomination process, "her refusal to answer legitimate and relevant questions posed by me and others belies this claimed respect."

Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested."

The job to which Kagan aspires -- to be the chief advocate for the federal government at the Supreme Court and other federal appellate courts -- is not one that requires her to have opinions, she says, except about how to best defend federal statutes and the positions of the Obama administration.

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

But there is a bit of the kabuki on both sides. And that is not because of Kagan's next job but, perhaps, the one after that: She is invariably mentioned among those President Obama might consider for the next Supreme Court vacancy.

So Kagan at times professes to have not given much thought to some huge legal controversies -- or at least she did not discuss them in a recorded forum for the committee to discover.

And Republicans seem to want a commitment from Kagan that she would defend a position whether or not she agreed with it -- and then to know whether she agrees with it.

Specter, for instance, listed a number of liberal positions championed in the past by Justice Ruth Bader Ginsburg, and then recalled that when helping Ginsburg with her confirmation process, Kagan referred to Ginsburg as a moderate.

"Do you think Justice Ginsburg's record on the Supreme Court demonstrates that she is a 'moderate'? " Specter asked Kagan in a letter.

"Given that I hope to be arguing before her one day soon, I hope you will let me decline to characterize Justice Ginsburg's record on the Court," Kagan wrote.

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