By Perry Bacon
Washington Post Staff Writer
Wednesday, June 30, 2010; 8:52 PM
Along with debating legal issues, Democratic and Republican senators argued Wednesday at Elena Kagan's confirmation hearings over another controversy: their participation in a "vapid and hollow charade" in the past and this week.
For the second straight day, Kagan's 1995 law review article, in which she mocked the Supreme Court nomination process she is now in the middle of for allowing nominees to dodge questions on their actual views, was invoked repeatedly. Republicans, joined by Republican-turned-Democrat Sen. Arlen Specter (Pa.), cast Kagan as violating the spirit of the article by not spelling out her views on gay marriage, abortion or hardly anything else.
Democrats not only defended Kagan but suggested that she had been much more forthcoming than two other recent nominees: conservatives Samuel Alito and John Roberts. The White House sent reporters a 16-point memo detailing "Elena Kagan's Open and Forthcoming Testimony." It listed a number of issues in which, according to the administration, Kagan said things that were "NEW."
"You have followed the pattern which has been in vogue since Bork, and you quoted me in your law review article that someday the Senate would stand up on its hind legs," said an exasperated Specter after Kagan repeatedly dodged his queries. "It would be my hope that we could find some place between voting no and having some sort of substantive answers. But I don't know that it would be useful to pursue these questions any further."
Specter, who has long complained about nominees avoiding questions, added, "We are searching for a way how senators can succeed in getting substantive answers, as you advocated in the Chicago Law Review, short of voting no."
He then ripped Roberts's decision in a campaign finance case: "his concurring opinion in Citizens United, which is really a repudiation of everything he testified to, just diametrically opposed."
Befitting both that political style and his lame-duck status, Specter was the only member to attack both parties.
Early Wednesday, Sen. Jon Kyl (R-Ariz.) said: "As she wrote in her famous law review article now, it's important for the senators to ask and important for the nominees to tell what their philosophy of judging is. And I'm hoping we can get a little bit more detail about that."
A few hours later, Specter ended his questioning after being hit with a barrage of Kagan non-responses, such as, "I've not read the petitions" and "I've not read the briefs in the way that I would as a judge."
Kyl failed to pin down Kagan's views on the use of international law by the Supreme Court, and she refused to tell Sen. Lindsey O. Graham (R-S.C.) whether some of the memos she had written in posts in the Clinton and Obama administrations represented her own views.
But Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) repeatedly praised Kagan for her candor and said she had been more forthcoming than Roberts and Alito.
Another Democrat, Sheldon Whitehouse (R.I.), didn't invoke Kagan's words but left little doubt that he had watched uninformative confirmation hearings before. Just not this one.
"For those of us who have to protect and safeguard the institution, it's also important for us to look back and see how we did and what we can learn from other, previous nomination hearings, where we were given very, very straightforward assurances about the importance of precedent and how nothing but balls and strikes would be called, and how clearly we were going to be, you know, very careful, modest, precedent-respecting judges," said Whitehouse, invoking a series of phrases used by Roberts.
He added: "And then we saw this: Every available telltale that would ring if judges were pursuing a particular agenda or strategy, other than to say it right out in the decision itself, which we've agreed is something that no judge would do, because it would be so inappropriate, I think you said, the worst possible thing."