By changing her mind about practically the only legal subject on which
she is known to have views, Elena Kagan has provided strong evidence
that she was right the first time, and is wrong now. The question is
how detailed the questioning of a Supreme Court nominee should be. Back
in 1995, Kagan wrote in a book review that Supreme Court nomination
hearings had become a farce because the candidates wouldn’t express any
strong opinions that might hint at how they might rule once they were
on the bench. Now she says that, after her own nomination, she was
persuaded by Senator Orrin Hatch (and this sentence is already pretty
hilarious, no matter where it might be going, isn’t it?)…persuaded, as
I say, by Senator Hatch that she should reconsider, which she did. And
whaddya know, she concluded that nominees should not discuss anything
at a confirmation hearing that might indicate how they would vote in
some future case. That covers just about everything anyone might wish
to know before giving her a lifetime job and membership in the
nine-member oligopoly that interprets the Constitution. Republicans
gripe about this, but not too loudly since they trained their judicial
nominees to do the same thing back in the day. (Here is my take on this subject
, from back when the shoe was on the other foot. Here
are Stuart Taylor defending current arrangements.)
of this custom predict that any comment that even hints at a specific
conclusion on an issue that may come before the Court will inevitably
be interpreted as a promise, with hell to pay if it is broken.
Dissenters (including me) say, Why should this be? Why can’t it be
taken for what it is: a statement of the nominee’s current thinking,
with the possibility that—after listening to the arguments and reading
the briefs (or just visiting Orrin Hatch)—she may change her mind?
who now shares the high-minded view that nominees should be seen but
not heard, has weakened her case by demonstrating that it is, in fact,
possible to change your mind on an important legal issue. (Under some
circumstances, it is not merely possible but positively recommended.)
If so, then a nominee’s expression of his or her current thinking, or
even a prediction of how he or she might vote in some future case, need
not be taken as a promise. And if the answer isn’t a promise, then
there’s nothing wrong with asking the question.
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