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Advise and wimp out

By Ruth Marcus
Wednesday, May 12, 2010; A17

Supreme Court nominee Elena Kagan has -- or had, anyway -- the right vision of what confirmation hearings for the high court should be. If she lived up to her own standard, she could improve the process enormously -- and be confirmed anyway.

Kagan has the unusual experience of having looked at the confirmation process from the vantage point of a frustrated congressional staffer. When Ruth Bader Ginsburg was nominated in 1993, Kagan served as special counsel to then-Senate Judiciary Committee Chairman Joe Biden.

Ginsburg, Kagan later wrote, used a "pincer movement" to avoid giving substantive answers. Either senators' questions were too specific, in which case Ginsburg claimed she was forced to demur because she might be called on to decide such a dispute. Or they were too general, in which case Ginsburg -- surprise! -- was forced to demur because, or so she testified, it was impossible to "talk in grand terms about principles that have to be applied in concrete cases."

Heads, I don't answer. Tails, I don't answer. Either way, I get confirmed.

Two years later, reviewing Yale law professor Stephen Carter's book about the Supreme Court nomination process, "The Confirmation Mess," Kagan concluded that the real mess was "not that the Senate focused too much on a nominee's legal views, but that it did so far too little."

As she wrote in the University of Chicago Law Review, "When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public."

Yes! End the farce! Free the Senate Judiciary Committee!

I've been frustrated for years over nominees' understandable reluctance to answer any but the most banal questions in any but the most banal way, and by the Senate's much less understandable acquiescence to this confirmation stonewalling. That strong term isn't mine -- it's Kagan's. Both Ginsburg and the next nominee, Stephen Breyer, she wrote, "stonewalled the Judiciary Committee to great effect, as senators greeted their 'nonanswer' answers with equanimity and resigned good humor."

This is a bipartisan failure with partisan motivations. Democrats have little incentive -- little, that is, beyond their constitutional duty to advise and consent -- to push hard to obtain meaningful answers from nominees of Democratic presidents. Republicans perform equally limply when they are in the same position. The precedent created by this senatorial enabling ends up shielding nominees even when there is some desire for more rigorous examination.

The underlying fallacy is that it would be inappropriate, even unethical, for nominees to reveal their views. But it is ridiculous to think that asking nominees to describe their overall judicial philosophies or even their general approach to particular legal issues would compromise their independence or impartiality.

Of course it would be wrong for a nominee to commit, explicitly or implicitly, to voting a certain way. But as Kagan noted, "we do not have to proceed nearly so far down the road of silence as . . . recent nominees would take us -- to a place where comment of any kind on any issue that might bear in any way on any case that might at any time come before the court is thought inappropriate."

As Kagan argued, senators are entitled at the very least to a discussion of "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."

And to more than that. Senators can insist "on seeing 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."

Kagan, not surprisingly, backed away from this view at her confirmation hearing for solicitor general. "I'm not sure that, sitting here today, I would agree with that statement," she said when Sen. Orrin Hatch quoted Kagan to herself.

Come on. This was no impulsive jotting. It was a lengthy, footnoted consideration of the confirmation process.

Her White House handlers, no doubt, will do their best to ensure that Kagan's hearings are a repeat of Sonia Sotomayor's: relentlessly uninformative.

Senators of both parties shouldn't stand for, as Kagan put it, another "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Free Elena Kagan! Then confirm her.

marcusr@washpost.com

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