Research

IN 1995, KAGAN WANTED NOMINATION HEARINGS TO BE “MEANINGFUL,” FOCUS ON “LEGAL ISSUES”

Kagan Believed Senate Must Engage Nominee “In Meaningful Discussion Of Legal Issues,” If Not, “Process Takes On An Air Of Vacuity And Farce…” “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures. Out, then, with the new mess and in with the old!” (Elena Kagan, “Confirmation Messes, Old And New,” 62 University of Chicago Law Review 919 (1995))

• Kagan Argued That Public Needs To Understand “Real-World Consequences” Of Nominee’s Philosophy. “And even when a nominee avoids this vice, her statements of judicial philosophy may be so abstract as to leave uncertain, especially to the public, much about their real-world consequences. Hence the second aspect of the inquiry: the insistence on seeing how theory works in practice by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces. It is, after all, how the Court functions with respect to such issues that makes it, in Carter's words, either a "salutary" or a "destructive" institution.” (Elena Kagan, “Confirmation Messes, Old And New,” 62 University of Chicago Law Review 919 (1995))

IN 2009, KAGAN AVOIDED GIVING DIRECT ANSWERS IN HER OWN HEARINGS

Kagan Stated That “The Nominee For Any Particular Position, Whether It’s Judicial Or Otherwise, Has To Be Protective Of Certain Kinds Of Interests…” “KAGAN: Well, thank you, Senator.  I was just going to say, you know, I wrote that when I was in a position of sitting where the staff is now sitting, and feeling a little bit frustrated that -- that I really wasn't understanding completely what the judicial nominee in front of me meant, and what -- what -- what she thought. But I think that you're exactly right, of course, that there are other -- that -- that this has to be a balance.  The Senate has to get the information that it needs, but as well, the nominee for any particular position, whether it's judicial or otherwise, has to be protective of -- of certain kinds of interests, and you named the countervailing ones.” (Elena Kagan, “Solicitor General Nomination Hearing,” Senate Judiciary Hearing Transcript, 2/10/09)

Kagan Argued That Fully Answering Questions Would Interfere “With The Responsible Performance Of The Job” And Decided To Answer Questions Based On How Past Nominees “Have Replied To Inquiries From Senators.” “By the same token, each nominee has a responsibility to address senatorial inquiries as fully and candidly as possible. But some questions – and these questions will be different for different positions – cannot be answered consistently with the responsible performance of the job the nominee hopes to undertake. For that reason, some balance is appropriate…In answering these questions as I did, I was cognizant of the way other nominees to the position of Solicitor General have replied to inquiries from senators.” (Elena Kagan, “Letter From Elena Kagan To Senator Arlen Specter,” p.1-2, 03/02/09)