Confirmation Messes: New

AIA-FL Blog ^ | June 28, 2010 | Bethany Stotts

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Confirmation Messes: New

Bethany Stotts, June 28, 2010

As Elena Kagan’s confirmation hearings opened today, Senators repeatedly reminded her about her previous criticisms of the vacuity of Supreme Court confirmation hearings and encouraged her to set a precedent for a more frank confirmation process.

In her 1995 article for the University of Chicago Law Review,“Confirmation Messes: Old and New,” Kagan writes that she believes “…the President and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: that is one part of what it means to preserve and protect the founding instrument.”

Kagan writes,

“Open exploration of the nominee’s substantive views, that is, enables senators and their constituents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee); and the process used in the Senate to serve the intertwined aims of education and evaluation ought to reflect what most greatly matters. At least this is true in the absence of any compelling reasons, of prudence or propriety, to the contrary; later I will argue, as against Carter, that such reasons are nowhere evident” (emphasis added).

“The kind of inquiry that would contribute most to understanding and evaluating a nomination is the kind [Stephen L.] Carter would forbid: discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues,” wrote Kagan....