The Kagan hearings: what to expect

The New York Times seems split on whether the Elena Kagan confirmation hearings will shed any light on how she would vote on the Supreme Court. An Adam Liptak article emphasizes a study of past hearings showing that we learn a lot about a nominee from these hearings. But in the same newspaper, the Times’s own editorial refers to the usual “information-free set pieces.” Based on my experience covering the Souter, Breyer, Ginsburg and Thomas confirmation hearings for CNN, I would say the editorial is closer to the truth than the Liptak article, although there are a few exceptions.

The Senate Judiciary Committee hearing is usually a ritual with a foregone conclusion, if the President has the votes. Senators make speeches with an eye on the next election. Nominees stonewall ever so politely. Clarence Thomas actually claimed that he never once discussed the Roe decision even though it came down while he was at Yale Law School, at a time when it dominated the conversations of most law students.

When the senators ask questions, each party has its pet code words. Republicans use “judicial activist” to mean “liberal,” conveniently forgetting that the main activist judges on the current Court are conservatives who are busily shredding our protections against the power of big business. Democrats use “avoid a litmus test” to mean “don’t ask about abortion.” As in “nominees should not be forced to pass some kind of litmus test on how they would vote on specific issues.”

Abortion never seems to go away as an issue. Both the GOP and Dems ask questions of the nominee’s attitude toward precedent (known as “stare decisis” in Courtspeak) but again these are often code words for “abortion.” “Adhering to established law” means not overturning Roe. “Recognizing the value of Brown v. Board” (which overturned Plessy v. Ferguson and outlawed school segregation) means admitting that precedent doesn’t always hold and therefore Roe could be overturned.

Nominees inevitably dance around these distinctions and leave no clear impression how they would vote. Asking about “judicial philosophy” usually produces few real insights. Nominees always say they firmly believe in the rule of law, but who doesn’t? What if there are two laws in conflict, such as a statute passed by Congress, on the one hand, and the mother of all laws, the Constitution, on the other? Well, then it comes down to how you interpret the Constitution and the nominee isn’t going to tip his or her hand.

Then there is “original intent.” Conservatives like to use that term to mean “stick to what the Founders actually said, not what you think they meant,” and then they read into the Founders’ words some conservative position. Liberals talk about the Constitution as a “living document,” meaning it can evolve over time and change with changes in culture, which opens the way to reading into it a liberal stance. Parts of the Constitution are pretty vague, anyway. What is “cruel and unusual” punishment? Cruel in whose eyes? Unusual compared to what?

You might say we know how a nominee will vote because we know what the policies are of the President who picked her. But knowing a President’s policies may not help us know what his nominee will do once on the Court. Bush 41 picked Souter expecting a fifth vote to overturn Roe, but instead Souter provided the key vote to reaffirm it.

At hearings there are sometimes bits of humor. During the Ginsburg hearings, Strom Thurmond listened to powerful feminist rhetoric from three witnesses, then said, “I want to thank you lovely ladies.” During the Alito hearings Biden, then a senator, asked a “question” (meaning made a statement) that lasted so long there was no time for an answer.

But other than occasional comic relief, the hearings usually produce no surprises or insights. What they do produce are self-serving partisan speeches by Senators and coy non-answers by nominees. It would be surprising if the Kagan hearings produce anything different.

(Photo: Harvard Law School)


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