I had the stomach flu yesterday, which gave me the opportunity to watch a full day of Solicitor General Kagan’s confirmation hearings. She is a mighty impressive witness, composed at all times, with deep scholarly knowledge of the law, and a bit of wit that makes her not only very likable, but also seemingly very human. Whether or not one likes her positions on the full range of issues, or whether you believe she will be activist or originalist in her interpretation of the Constitution, there is no doubt that she has what it takes to do the very important and difficult job for which she has been nominated.
To be sure, the nominees put forward by the president of one party are always going to be challenged by Members of Congress in the other, and each president will nominate a person whose decisions are based on the law, but whose interpretations of the law will obviously be biased in one direction or the other by his or her political or policy beliefs. In other words, conservative presidents will nominate conservative justices and liberal judges will nominate liberal justices, and nothing revealed during the confirmation process will change that. This is especially true since Supreme Court nominees, unlike presidential nominees for other senior posts, cannot actually talk about their opinions on matters that count since it is these very issues that are most likely to come before the court.
For a nominee who has not yet served as a judge, we have no way of knowing how she will interpret or apply the law once she makes it to the Supreme Court, and asking questions during a confirmation hearing doesn’t really help because the nominee can’t answer any of the important questions anyway. So in the case of Elena Kagan, the best we can do is read her scholarly papers, which are the only tool by which she has been able to express her personal viewpoints over the years. We cannot rely on what she wrote while in the Clinton White House, or when she clerked for Justice Marshall, because, as she has so eloquently and accurately explained during her testimony, as a White House staffer or Supreme Court clerk, her job was not to advance her own thoughts, but to “channel” those of her boss, giving legal advice through the lens of Clinton’s or Marshall’s priorities and interpretations. Anyone who has ever worked in Washington understands this. So her academic papers are of great importance since they are all that we have to judge her intellect, political leanings, and personal priorities.
That said, it is a bit absurd that Ms. Kagan is being asked to discuss what she wrote about the law while a student at Oxford, long before she went to law school. I would imagine that each of us saw the world in a slightly different way when we were in our 20s than we do now, and one would hope that the maturation process not only allows but forces us to change our minds about a vast number of ideas and subjects. I see it as a sign of growth that Professor Kagan allowed her thinking to evolve, and that some of her later scholarly papers demonstrated this evolution of thinking, in some cases even contradicting or completely reframing her earlier ideas. Much ado has been made about one of her papers from an earlier decade in which she seemingly condemned the confirmation process, or at least those who were the subject of the confirmation processes, because they failed to provide us with complete answers regarding their opinions on the full range of controversial issues. That paper illustrates the wide divide between the academic world of big ideas and the real world of pragmatic caution. She isn’t a sellout in terms of her theoretical ideas, but a survivor in the world that exists beyond lovely brick and stone campuses.
I give her a great deal of credit for being able to think big while surviving in the day-to-day, imperfect, and far from ideal world in which a public servant works. The best public servants are those who do what they can within the constraints of the real, while still spending time thinking about the possibilities of the ideal.
Do I think that Elena Kagan might bring a liberal bias to the bench? Of course. Do I think that anything revealed during the confirmation process will change that? No way. However, I do give a great deal of credit to President Obama for identifying a candidate who is not polarizing, who does not appear to have a particular personal agenda (her area of scholarly expertise is administrative law, which is far from being an “advocacy” topic), and who has a long history of performing well within the constraints of public service, while never being so jaded as to give up on thinking about a more reasoned approach, a more perfect world. Having worked in at least one other branch of government, I believe that Solicitor General Kagan has a deeper appreciation for the role that each branch of government plays, and for the important divisions of power as well as the checks-and-balances that our Founders created. I suspect she will understand the place and purpose of the Supreme Court better than others who, perhaps, haven’t experienced life in one of the other branches of government. Personally, I found it to be an eye-opening experience to work in both the executive and legislative branches since people in each lack an understanding of and appreciation for both the role and the challenges faced by those in the other.
Yes, she once worked for an activist judge, but it is highly likely that she came to appreciate not just the benefits but also the risks of operating from that position. What goes on behind closed doors is generally not a celebration of what was done right, but a careful dissection and consideration of what was done wrong or what could be done better the next time. She seems to understand that an approach that was required in the 1950s and 1960s may not be effective in meeting the challenges we face today. On the other hand, perhaps she will serve as a constant reminder to the Congress that if they can’t get their job done, others have no option but to try to do it for them. The best way for Congress to protect against justices legislating from the bench is for them to actually get the job of legislating done on the floor of the House and Senate. Passing the annual appropriations bills would be a very good place for them to start.
Sure, she has been well coached for these confirmation hearings, but what really comes through in her testimony is Elena Kagan’s intelligence, composure, fairness, thoughtfulness and down-to-earth humor. Her skills as a judge have not yet been tested, but her deep command of jurisprudence is obvious and her lack of a legal track record may be an asset, uniquely positioning Justice Kagan to do what is right, rather than what is consistent with her earlier rulings. In the end, we may come to learn that navigating the tricky world of working in the White House or serving as an academic dean best equips a person for making well-reasoned, fair, and Constitutionally-correct decisions from the bench. Only time will tell, but based on the questions asked at yesterday’s hearings, this nominee is squeaky clean and has the sort of personal and career history that is to be admired, not criticized. In fact, what I saw yesterday was a lot of senators taking advantage of free prime-time television coverage to get a head start on fall campaigning. Questions that come in the form of a paragraph are usually not at all about searching for an answer. At the same time, it was reassuring to see just how many U.S. Senators are bright and articulate, have a full understanding of the issues, and can ask questions based on personal knowledge of the subject and not just staff-prepared texts. There were some remarkably astute questions asked yesterday and some meaningful dialogue took place. I felt good as an American to see some of the brightest lights of the Senate shining yesterday.
It appears highly likely that this nominee will be confirmed, so perhaps it is time for the Senate to take the vote and get back to the more important business of legislating. After all, they owe the American people the FY 2011 budget by the end of September.
