Why Elena Kagan should drop the ‘Kagan standard' at her hearings

Elena Kagan, left, is greeted by Sen. Richard Durbin on Capitol Hill in May.
Elena Kagan, left, is greeted by Sen. Richard Durbin on Capitol Hill in May. (Alex Brandon/associated Press)
By John F. Manning and David A. Strauss
Sunday, June 27, 2010

Sen. Richard Durbin (D-Ill.) is reported to have recently told Elena Kagan, "You know, you're going to have to live by the Kagan standard, which you established." He was referring to the 1995 University of Chicago Law Review article in which Kagan, then an assistant professor, made a plea for Supreme Court nominees to speak more expansively on their legal views during Senate confirmation hearings.

Kagan argued that the Senate should not limit the scope of its inquiry to questions such as character and objective fitness. Rather, because so much of judging depends on the justices' "divergent understandings of the values embodied in the Constitution and the proper role of judges in giving effect to those values," senators exercising their constitutional function of advice and consent should ask questions calculated to reveal the nominee's values. In fact, Kagan added, senators should not only ask about a nominee's judicial philosophy in the abstract but also should 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."

The two of us have different political allegiances, and we disagree on many legal issues. But we both hope that Elena Kagan has had a change of heart about this one. It may go too far to say, as some do, that such an in-depth inquiry into a nominee's views gravely threatens judicial independence. Justices have life tenure for a reason. And senators should, and undoubtedly will, ask Kagan about her judicial philosophy and her general approach to the Constitution.

But demanding that a nominee testify about specific issues likely to come before the court shows a serious misunderstanding of what federal judges -- including Supreme Court justices -- do. At least since Marbury v. Madison, the federal courts in our constitutional system have played the role of dispute resolvers. Judges decide cases that have specific parties who make specific arguments about specific facts and laws. Federal judges do not decide constitutional questions in the abstract. Rather, they do so only when necessary to decide a case and thereby to redress a concrete, particular injury felt by someone who has a vested right to sue.

This practice, though not universally admired, has many virtues. Because cases have a concrete factual context, the stakes -- and the limits -- of the court's rulings are known. Justices have the benefit of vigorous advocacy by lawyers on both sides. Multimember courts such as the Supreme Court, ideally at least, engage in a deliberative process in which judges consult with -- and sometimes persuade -- one another before concluding what the law says. All of this is lost when a justice-to-be commits herself on an issue ahead of time.

To ask a nominee a litany of questions about abortion, affirmative action, executive power and the like loses sight of this understanding of the federal judiciary. A justice is then no longer a resolver of concrete disputes. Instead, she is someone who, much like a senator, takes positions on matters that are important to politicians, interest groups and the voting public. Two decades ago, Justice Antonin Scalia lamented that as the Supreme Court has ventured ever deeper into sensitive areas of public policy, the justices had been rewarded "with carts full of mail from the public, and streets full of demonstrators, urging us -- their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will -- to follow the popular will." A Senate confirmation hearing that insists on a nominee's "taking positions" on matters of public controversy reinforces the culture that Scalia decried.

Worse, Senate hearings might then become a place where, to get confirmed, nominees make what amount to campaign promises on specific issues. Sen. Tom Coburn (R-Okla.) wrote to Justice Sonia Sotomayor this month that her joining an opinion citing foreign law in support of an interpretation of the Constitution's clause on cruel and unusual punishments "conflicts with [her] pledge to the Judiciary Committee and the American public not to 'use foreign law to interpret the Constitution.' " Whatever the merits of that opinion, or of Coburn's concerns about it, no nominee can be expected to make a binding "pledge," in the abstract, at a Senate hearing. Our system is based on the idea that justices decide legal questions when they decide disputes brought by actual parties, based on facts, after argument and briefing, in consultation with the other justices. The confirmation process should reflect, and respect, that deeply held constitutional premise.

We both know Elena Kagan well. We believe that she will take seriously the obligation to make fair and impartial decisions based on the briefs and arguments presented in the cases before her. Senators should not ask her to articulate her positions on legal issues in advance of her deciding cases. If they ask, she should decline to do so. That action would demonstrate, more than any pledge, that she understands what it means to be a judge.

John F. Manning is a professor at Harvard Law School. David A. Strauss is a professor at the University of Chicago Law School.

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