The Senate will find out what Ms. Kagan has beyond a strong resume

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Tuesday, May 11, 2010

IN ELENA KAGAN, President Obama has found a Supreme Court nominee with a stellar intellect and an impressive résumé. Educated at Princeton and Harvard Law School, Ms. Kagan, 50, was the first woman to become dean of the latter and the first to serve as solicitor general. People on the right and left respect her accomplishments, talent and ability to work with those with opposing views.

This is not the first time Ms. Kagan has been tapped for a spot on the federal judiciary. Late in his second term, President Bill Clinton nominated her to a seat on the U.S. Court of Appeals for the D.C. Circuit. As happens quite often, members of the opposing party dragged their feet to save the slot for the next president. Ms. Kagan never received a vote. That adds some irony to early criticism of Ms. Kagan's lack of experience on the bench.

In fact, judicial experience is valuable but no prerequisite. Many respected justices, including Chief Justice William H. Rehnquist, had no experience on the lower courts. What is indispensable is a first-rate mind and a proven ability to deal thoughtfully with complex legal issues. Ms. Kagan has demonstrated such qualities during her tenure as a law professor and her briefer time as solicitor general.

The president deserves significant deference in choosing judicial nominees, including those to the Supreme Court. Still, much is unknown about Ms. Kagan, in part because she has a relatively thin paper trail. Ms. Kagan was energetically questioned last year on a whole host of issues during her confirmation as solicitor general. She was asked to explain her decision to limit on-campus privileges for military recruiters because of her opposition to the "don't ask, don't tell" policy on gays in the military. Although she addressed the issue at the time, the large audience that will tune in to the Supreme Court confirmation hearing deserves to hear her directly address the matter, but the hearing should not be dominated by this issue.

Ms. Kagan provides an intriguing template for how the hearings should proceed. In a 1995 law review article from which she has since distanced herself, she argued that senators and judicial nominees should engage in substantive exchanges during confirmation hearings, including discussions about judicial philosophy and legal theories. Such a discussion, Ms. Kagan wrote, should include "the judge's understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory." This would be refreshing, especially in contrast to what Ms. Kagan calls the "vapid and hollow charade" of some past confirmation hearings. But Ms. Kagan must not be pinned down on how she would vote in future cases. Mr. Obama came close to such a breach in his introduction of his nominee, suggesting that she would continue to fight for "ordinary citizens" against "unscrupulous corporations." Justices should make no such promises and should decide each case on its merits.


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