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The Judiciary Committee grills Elena Kagan

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Tuesday, June 29, 2010; 1:18 PM

The Post asked legal experts for quick takes on the first day of questioning at Elena Kagan's Senate confirmation hearings. Below are responses from Jonathan H. Adler, Walter Dellinger, Edward Whelan and Patricia Wald.

JONATHAN H. ADLER

Professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law; contributor to the legal blog, The Volokh Conspiracy

The Kagan confirmation hearings had the prospect of being something different. In a 1995 law review article, then-professor Elena Kagan decried the "vapid and hollow charade" of contemporary Supreme Court confirmation hearings in which nominees dance around substantive remarks and avoid direct answers to pointed questions. The Bork hearings, by contrast, featured a clash of constitutional visions, as the nominee sparred with his Senate inquisitors. It was, according to Kagan in 1997, "the best thing that happened, ever happened, to constitutional democracy."

In her 1995 article, Kagan argued that it is appropriate, if not essential, for senators to inquire into a nominee's "broad judicial philosophy" as well as "her views on particular constitutional issues" including those "the court regularly faces." The "critical inquiry" for senators at such hearings "concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution."

Given these views, some hoped the Kagan hearings would feature a robust dialogue on constitutional theory and current legal controversies, but it was not to be. She refused to disavow her article, but she also confessed she got the balance wrong and could not be as candid as she had once urged. She even refused questions taken directly from her 1995 work, such as "the direction in which she would move" the court.

Like Sonia Sotomayor before her, Kagan would not embrace an openly "liberal" or "progressive" constitutional vision. She demurred when asked to defend President Obama's "empathy" standard and even claimed not to know what a "legal progressive" is, or whether she would qualify. "We are all originalists," she explained, adding later in the day that "it's law all the way down" when judges make decisions.

The most interesting moments Tuesday morning came when Kagan was asked about her work as solicitor general and the arguments she made on behalf of the federal government in Citizens United v. Federal Election Commission. Here she walked a tightrope, defending the positions she has taken in court while not revealing her personal views of the issues. On the whole, like successful nominees before her, she erred on the side of caution, not candor, and gave lengthy answers that said relatively little.

WALTER DELLINGER

Head of the Office of Legal Counsel in the Clinton administration; partner at O'Melveny & Myers

Solicitor General Elena Kagan had a great Tuesday morning, one of the best of any nominee in a long time. Most impressive was her willingness to discuss forthrightly her views on the law and how she would approach judging. I have long argued that nominees should be more willing to offer more revealing answers, but I really didn't expect it would happen. Tuesday morning it did.

First and foremost, Kagan rejected a crabbed version of originalism, one that is actually contrary to the expectations of the Framers. She noted that sometimes the Constitution contains specific rules (Senators must be 30 years of age) and those rules must be followed. But for other matters, she argued, the framers rejected specificity and adopted general language (searches must not be "unreasonable") that they knew would require the exercise of judgment by later generations in light of a changing world. Because we have a more expansive view of freedom of expression than the Framers' generation, she believes that judicial precedent is the surest guide in First Amendment cases. She defended the major civil rights in similar terms. This was a breath of fresh air in constitutional debate.

She was modestly deferential, but wholly willing to stand by the courage of her convictions. She unhesitatingly restated her opposition to "don't ask, don't tell;" embraced the doctrine that courts should give deference to the statutory interpretations of executive branch agencies; discussed how economics should influence the interpretation of the anti-trust laws and flatly stated that cameras should be allowed to cover Supreme Court arguments.

Unless I am overestimating the effect of cogent argument and candid reasoning, I really believe she may have changed the minds of some senators who had been looking for reasons to oppose her. I think they found reasons to support her.

EDWARD WHELAN

President of the Ethics and Public Policy Center; former clerk to Justice Antonin Scalia

Elena Kagan complained in 1995 that the Supreme Court confirmation process "takes on an air of vacuity and farce" when the Senate fails to engage nominees in "meaningful discussion of legal issues." Anyone hoping that Kagan would abide by the standards that she set forth in that article and provide a meaningful discussion of her views on legal issues must now abandon that hope. Kagan has beaten a complete (but not entirely candid) retreat.

In 1995, she drew a sharp line between a nominee "commit[ting] herself to voting a certain way on a case" (bad) and discussing her current "views on particular issues -- involving privacy rights, free speech, race and gender discrimination, and so forth -- that the court regularly faces" (essential). But from the outset Tuesday, Kagan made clear that she wouldn't offer her legal views on anything remotely specific. And she's received no real pressure from senators to do so.

There's still much ground to be covered in this hearing, and it's too early to declare that Kagan's effort to turn it into a snoozefest will succeed. Kagan has already given unsatisfactory accounts of various aspects of her record (including the Solomon Amendment military recruiting controversy at Harvard). And she's opened the door to explaining her thinking on positions that she's taken as solicitor general. But it seems likely that senators won't know much more about Kagan coming out of the hearing than they knew going in.

PATRICIA WALD

Former chief judge of the U.S. Court of Appeals for the District of Columbia

Watching the hearings on days one and two, I had the strange feeling that it was the senators who were pleading for confirmation (of their concerns) before the candidate justice, not the other way around. Smart and almost certainly rejection-proof, Elena Kagan is in true confirmation mode, deflecting, redefining, or generalizing any potentially informative question with growing ease as the hours pass. The hearings border on the boring and mainly reveal the razor-sharp divisions among the two parties, represented by the questioners.

The format, too, is in Kagan's favor, ironically. She is the steady presence, able in repelling a stream of questions to enlarge, modify, do midterm corrections on former answers while the parade of senators make their case in an allotted time and move on. It's hard in retrospect to remember how Robert Bork could have undone himself in the hearings. Kagan will undoubtedly be a smart justice, though I am no clearer now than before as to what kind. How about, as an alternative to hearings, embedding a Rolling Stones reporter traveling with the candidate and her entourage for a few weeks before confirmation?

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