On Monday the Senate Judiciary Committee begins confirmation hearings for President Obama's second Supreme Court nominee, Solicitor General Elena Kagan. Expectations are low.
The conventional wisdom is that, when not bloviating about their pet causes or dissecting Kagan's memos as a staffer in the Clinton administration, senators will artlessly attempt to get the nominee to say how she would rule on same-sex marriage, the constitutionality of healthcare reform and other hot-button issues. Kagan, according to this view, not only will refuse to comment on particular cases, but will avoid enlightening senators in general about her views on broad constitutional issues. Never mind that in a 1995 law review article Kagan denounced the Supreme Court confirmation process as a "vapid and hollow charade" and faulted senators for not insisting "that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues."
It doesn't have to be this way. Instead of playing cat-and-mouse with the nominee about how she would rule in future cases, senators should think big and press Kagan for her views on large and important areas of the law. The more serious and less confrontational the questions, the more likely Kagan will be obliged to answer in kind.
We suggest five areas of inquiry:
The role of a Supreme Court justice. At his confirmation hearings, Chief Justice John G. Roberts Jr. compared a judge's role to that of a baseball umpire who calls the balls and strikes. But Roberts ignored — to extend the metaphor he used — that the court gets to choose the games it will officiate and defines the strike zone. Does Kagan side with Roberts or with retired Justice David H. Souter, who noted in a recent speech that sometimes justices must make a choice when "the Constitution has not made it in advance in so many words." For example, does she agree with the current court that, in deciding whether a practice amounts to cruel and unusual punishment, the justices should pay attention to "the evolving standards of decency that mark the progress of a maturing society"?
It's also legitimate for senators to ask Kagan what values would inform her interpretation of what the late Justice Robert Jackson called "the majestic generalities of the Bill of Rights." And to what extent will her personal experience enhance, or limit, her interpretation of the Constitution? Is there a role for the much-ridiculed quality of "empathy" in judging? And empathy for whom?
The war on terror. Kagan has been criticized by some liberals for saying, at hearings on her confirmation for solicitor general, that she agreed with Atty. Gen. Eric H. Holder Jr. that under the laws of war an enemy combatant could be detained without trial. On the other hand, as dean of Harvard Law School she signed a letter opposing legislation to strip detainees at Guantanamo of the right to challenge their confinement in court. To some critics of anti-terrorism policy, this is a contradiction.
The positions Kagan has taken, especially as an advocate for the administration, are not necessarily a guide to her current views of whether and to what extent the Constitution empowers the president to take unilateral action in wartime. For example, could the president suspend civil liberties to deal with a terrorist threat?
The court and Congress. In a series of decisions, the court has second-guessed Congress about numerous issues, including the need to protect women from violence, the scope of religious freedom and the importance of campaign finance reform in combating the reality and appearance of corruption in federal elections.
How does Kagan see the relationship between Congress and the court? In what sorts of cases should the court aggressively scrutinize Congress' decisions to see if they comport with the Constitution? For example, should the justices be more willing to overturn statutes that threaten free speech than those that regulate economic activity? How broadly should the court interpret Congress' power to enforce the provisions of the 14th Amendment, which prohibits states from depriving any person of life, liberty or property without due process of law and guarantees "equal protection of the laws"?