Give Sen. Jim Inhofe (R-Okla.) credit at least for not wasting anyone's time or money. Before the sun had set on the very first day of the official candidacy of Solicitor General Elena Kagan for a seat on the United States Supreme Court, the senator from the aptly named Sooner State had declared he would oppose her nomination. Team Kagan won't be pitching a shutout after all.
"I am . . . concerned about the seeming contempt she has demonstrated in her comments about the Senate confirmation process," Inhofe wrote in a release issued Monday afternoon. ". . . [I]t is concerning that the President has placed such trust in a nominee that has not been properly vetted through a judicial career, having worked mostly in academia and never before as a judge."The first remark was a retort to Kagan's candid, if now ironically blunt, assessment of Supreme Court nomination hearings from 1986 to 1994. And it is fairly typical of Washington politics these days. As a member of the body that tolerates judicial hearings almost entirely full of blather and nearly devoid of insight, Inhofe has no right to pretend to be offended by Kagan's views. The second remark is a much-repeated shot at Kagan's lack of experience as a judge.
Kagan, indeed, will have to explain away her blissfully accurate
assessment, offered in 1995, that Senate Judiciary Committee confirmation hearings were a "vapid and hollow charade." Honest as it was, it was an intemperate thing to say for someone already operating at such a high level of the law. But she said it four years before
her first nomination to the federal judiciary, as D.C. Circuit Court of Appeals judge, was blocked by Senate Republicans at the end of the Clinton Administration. (Some of the same Republicans, not incidentally, who now are criticizing Kagan's lack of experience as a federal judge.)
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I suspect Kagan will tell any senator who asks that her comments 15 years ago were written in an academic vein, from the perspective of a curious legal scholar frustrated at having to endure the "vacuity" of confirmation hearings following the meltdown over the Supreme Court nomination of Robert Bork in 1986. She will say that she wished at the time that the public had more access to the inner thinking of the men and women who are to serve on the high court. And, if she is feeling particularly expansive at that moment this summer, she might courageously say that she still
favors the rough-and-tumble of the so-called "Bork Model" -- where a nominee actually states his (and at that
time it had still only been a "his") legal views on controversial legal topics.
Here is what Kagan wrote in 1995: "The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." It doesn't appear bold to me to suggest that the vast majority of the people paying attention to this
significant story would agree completely with that
description of what a model confirmation hearing would be.
Alas, Bork's candor exposed him for the crank he was and then it did him in. He was thus (in yet another irony at play here) the worst choice to go through a Borking. And, quite reasonably, no nominee since has meaningfully embraced the in-your-face Borkian approach to these hearings. Less than a decade after the Bork War, and less five years after the Clarence Thomas affair, the "Ginsburg Rule" was developed and employed. And every nominee since Justice Ruth Bader Ginsburg has hidden behind the fiction that our nation's brightest minds cannot publicly state their formed views on our nation's most famous legal problems because they may have to share those views again, or change them, in a subsequent decision.
Showing Supreme Court nominees they have a stake in remaining silent, the right to hold their own counsel if you will, has been a marvelous success. With the retirement of Justice John Paul Stevens, all of the current justices have come to the court after
the original Borking episode took place. Yet, if a candidate were to give the ol' Bork Model another spin, it's hard to imagine someone better than Kagan to do it. She has written so little on so many topics, especially when compared to her decision-churning judicial colleagues, that she could say, "I haven't studied the specific issue closely enough to give you an answer," over and over again and actually mean it. And what would the Senate do then? It's not like President Obama has just nominated the pool guy or a dropout stripper (all due respect, folks) to become a justice of the Supreme Court.
Before becoming the nation's first female solicitor general, Kagan survived and thrived as the first female dean of the Harvard Law School. Those jobs are harder, and a whole lot more prestigious, than the modern Capitol Hill gig. That's what so particularly cheesy about criticism that somehow those credentials aren't good enough for lesser men and women to accept. There have been far more justices of the Supreme Court than there have been deans at Harvard Law School, not only because the one seats nine and the other seats one. And some brilliant legal minds would rather have the latter job over the former one. Besides, what's so terrible and unusual and unsatisfying about Harvard? If Kagan makes it onto the Court, no fewer than five
of her eight
colleagues (including three
conservatives) went to Harvard Law.
There are plenty of reasons why Kagan's impending appearance before the Judiciary Committee offers a rare opportunity to mark personal and political courage in real time. Will she be true to her 1995 self and candidly cut through the "vacuity" that rains down at these hearings? Will she tell us what she thinks of the constitutionality of same-sex marriage and "Don't Ask, Don't Tell" and the Citizens United campaign finance case? Will her inquisitors, the committee members, accept their own role in the diminishment of insight at the expense of spectacle? Will they stop preening for the cameras and start listening? These are important questions, one which Senate leaders, and the nominee herself, ought to think about between now and hearing day.
Sen. Inhofe isn't going to be paying attention. We know that already. But a lot of other people will be.