Ideally, Senate confirmation hearings for a Supreme Court nominee serve two purposes: to test the potential justice's grasp of the law and to elicit her views about the Constitution and the role of the court. This week's hearings for Solicitor General Elena Kagan accomplished the first objective but not the second. Kagan faithfully followed the playbook used to advantage by Chief Justice John G. Roberts Jr. at his hearings five years ago: Demonstrate an encyclopedic knowledge of Supreme Court decisions, commit yourself to judicial modesty and a respect for precedent, and elegantly evade questions that might reveal your own views about constitutional issues.
We had hoped that Kagan would be more forthcoming. In a now famous 1995 article, she characterized confirmation hearings as a "vapid and hollow charade" and criticized senators for not insisting "that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues."
It wasn't to be, despite efforts by senators of both parties to explore serious issues of legal philosophy. Candor fell victim to the conventional political wisdom that the least said by the nominee, the soonest mended.
Kagan circumscribed the conversation with the Senate Judiciary Committee by saying she wouldn't "grade" past decisions of the court. Yet her appraisals would have illuminated her views about subjects such as Congress' power under the Constitution's Commerce clause and gun control — without committing her to overruling those decisions. The closest she came to commenting on a controversial case involved this term's Citizens United decision, in which Kagan had argued for the constitutionality of laws restricting election spending by corporations. "I did believe we had a strong case to make," she told the committee. Other decisions she described as "settled law" — another echo of Roberts' testimony that was simply one more way of ducking questions about her own opinions.