Elena Kagan, Barack Obama’s second nominee to the U.S. Supreme Court, would be the first person to join the bench in 48 years without having served previously as a judge. Ironically, Kagan’s lack of judicial and litigation experience runs contrary to what she herself has called the “threshold requirement” for Supreme Court service: “that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge.”
Having served as Solicitor General for less than 14 months and with a prior academic background more distinguished as an administrator than as a writer, there’s little evidence that Kagan has mastered the craft she’s now being asked to do for life.
Kagan’s lack of record makes it all the more important that U.S. Senators ask probing questions during the confirmation process to try to assess what kind of justice she would be. Unfortunately, as the process unfolds, we can expect drama to dominate substance, with much posturing and little revelation. Prospective justices have learned to avoid controversy in confirmation hearings by refusing to state their core beliefs, obfuscating their records, and dodging any relevant questions.
That Kagan’s confirmation process is expected to be controversial at all is a sign of the times, as contentious judicial confirmations were historically rare. The Founding Fathers envisioned Senate confirmation as a basic test of fitness, largely designed to prevent presidential cronyism. In the 76th Federalist, Alexander Hamilton suggested that Senators should ensure against “a spirit of favoritism in the President” that would lead him to nominate “unfit characters” and those prejudiced by “family connection” or “personal attachment.”
But as today’s Supreme Court jurisprudence has become unmoored from constitutional text and history, and as judges have delegated to themselves whole swaths of policy once reserved to elected representatives, it’s hardly surprising that those same elected representatives would worry about the views of prospective jurists. And it’s hardly reasonable to expect the Republicans to roll over and play dead, focusing solely on competence rather than ideology in the confirmation process, given that the Democrats in the Senate rejected Ronald Reagan’s third nominee to the Court, Robert Bork, and only narrowly confirmed George H.W. Bush’s second nominee, Clarence Thomas – and that the current president himself, as a Senator, opposed the nominations of both Chief Justice Roberts and Justice Alito on wholly ideological grounds.
Elena Kagan once wrote that it should be expected in the confirmation process that judicial nominees be engaged “in meaningful discussion of legal issues.” It will be interesting to see whether the Senators hold her to that standard.
James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.
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