A Supreme conversation

Monday, June 28, 2010

"ONE OF THE truly unsettled questions in American politics is how a prospective justice of the Supreme Court should be interrogated and judged by those members of the U.S. Senate most responsible for his confirmation."

Those words appeared on this page in 1991; nearly 20 years later, the body politic is still struggling with the question. Senators will have another opportunity to define and refine the process beginning Monday, when Elena Kagan appears before the Senate Judiciary Committee for the start of her confirmation hearings.

In some respects, Ms. Kagan is much like the nominees who recently preceded her: an Ivy League graduate with a stellar academic record; an achievement-filled résumé that includes many firsts -- the first woman to be dean of Harvard Law School, the first woman to be solicitor general of the United States. By all evidence, she possesses a top-rate mind, an inclusive and pragmatic approach to problem-solving and the too-rare ability these days to appreciate divergent points of view.

But, in one respect, Ms. Kagan presents the committee with a challenge it has not encountered for four decades: how to judge a nominee with no prior judicial experience. The absence of time on the bench is by no means disqualifying; many Supreme Court justices lacked this credential, including the late chief justice William H. Rehnquist, who was a Justice Department official when he was nominated by President Richard M. Nixon. But it does mean that the committee and the country do not have the benefit of judicial opinions to shed light on how Ms. Kagan approaches legal questions or how she thinks about the law. This vacuum should be filled with a candid and substantive discussion to avoid what Ms. Kagan has called the "vapid and hollow charade" of some confirmation hearings past.

This process has limits. Senators should not ask -- and Ms. Kagan should not answer -- questions about whether she agrees with the conclusions reached in particular cases. In this term, the court found itself grappling with a set of 19th-century precedents that had direct relevance to a Second Amendment case before it. Justices can never be certain -- no matter how many times they chant the words "stare decisis" -- which issues and precedents they will be asked to revisit.

But it should be possible to engage in a conversation about the processes employed by judges without inappropriately boxing Ms. Kagan into a corner or improperly seeking her commitment on a future vote. A discussion of this type would provide a valuable and public test of Ms. Kagan's knowledge of the law, her appreciation or displeasure with different theories, and her skill in communicating clearly and in layman's terms. This last skill is often underrated, but it is important that those who interpret the law are able to spell out their thoughts clearly for the lower-court judges and citizens who have to live by their rulings.

The run-up to the hearings has been typical and disappointing: Republican senators predictably began raising questions about her qualifications and ideology even before her nomination was formally announced. Democrats rarely missed an opportunity to cheerlead, even though had Ms. Kagan been nominated by a Republican many would be blasting her for the strong national security positions she took on behalf of the president. It is time for senators to demand of themselves what they expect of any Supreme Court nominee: Do your homework, know your stuff and keep an open mind.

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