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Tuesday, May 11, 2010

The Proper Kagan Quote for the Occasion

Following up on my posts yesterday about the confirmation process for Elena Kagan, many of the people who have written on this subject have picked up on Kagan's review essay for the University of Chicago Law Review, "Confirmation Messes, Old and New," in which Kagan writes that it is appropriate to ask substantive questions of judicial nominees.  They have used this to suggest that any such substantive questions are fair game for Kagan.  Yesterday, using Senators Cornyn and Sessions as an example (and suggesting that similar uses can be made of language by Democratic senators, like Senator Schumer, who have spoken about the confirmation process), I argued that this is the wrong place to focus our attention.  In asking what kinds of questions are appropriate for the nominee, we should largely disregard what Kagan herself has said, except that she may be criticized if she is inconsistent in her own views.  Rather, we should focus on what the senators themselves believe, as a matter of principle and/or constitutional law, their own limits are on appropriate questions and answers in the confirmation process.  

Today, I want to suggest that in any event, the commentators have focused on the wrong language from Kagan's article.  Two other passages strike me as more pertinent.  

The first passage has to do with what Kagan has said about the limits of substantive questioning of nominees:

I do not mean to argue here that the President and Senate may ask, and a nominee (or potential nominee) must answer, any question whatsoever. Some kinds of questions, as Carter contends, do pose a threat to the integrity of the judiciary. Suppose, for example, that a senator asked a nominee to commit herself to voting a certain way on a case that the Court had accepted for argument. We would object--and we would be right to object--to this question, on the ground that any commitment of this kind, even though unenforceable, would place pressure on the judge (independent of the merits of the case) to rule in a certain manner. This would impede the judge's ability to make a free and considered decision in the case, as well as undermine the credibility of the decision in the eyes of litigants and the public. And once we accept the impermissibility of such a question, it seems we have to go still further. For there are ways of requesting and making commitments that manage to circumvent the language of pledge and promise, but that convey the same meaning; and these scantly veiled expressions pose dangers almost as grave as those of explicit commitments to the fairness, actual and perceived, of the judicial process.
So Kagan does believe there are limits on the kinds of questions that nominees should answer.  This significantly blunts any potential criticisms of Kagan for inconsistency or hypocrisy if she declines to answer questions designed to elicit her views on issues likely to come before the Court.  

But the more interesting passage, I think, is this one:

[F]ocusing the confirmation process on moral character (even in conjunction with legal ability) would prove a terrible error. For one thing, such a focus would aggravate, rather than ease, the meanness that Carter rightly sees as marring the confirmation process (and, one might add, much of our politics). The “second” hearing on Clarence Thomas ought to have taught at least that lesson. When the subject is personal character, rather than legal principle, the probability, on all sides, of using gutter tactics exponentially increases. There are natural limits on the extent to which debate over legal positions can become vicious, hurtful, or sordid--but few on the extent to which discussion of personal conduct can descend to this level.

More important, an investigation of moral character will reveal very little about the values that matter most in the enterprise of judging. 

This is the passage that seems to me to really be on the money.  Even if we think senators should be able to ask, and nominees should be able to answer, substantive questions, as Kagan does (within limits), there is a difference between leading a horse to water and getting him or her to drink.  For the most part, the early returns on the Kagan nomination suggest that even if senators are free, or consider themselves free, to ask substantive questions of a meaningful kind, they won't do so.  They will continue to focus on what they consider easier and less controversial substitutes for genuine substantive questioning.  They will focus on questions that depend not on saying, as I wrote the other day, "This is a fully qualified nominee, but one who I will vote against for substantive reasons," but that depend instead on the argument that the nominee is "unqualified" for the position regardless of her substantive views.  The benefit of these questions, among other things, is that the senator can use them as a knockout punch without even having to engage in substantive discussion, especially if it turns out the nominee is not so substantively objectionable that she can be easily demonized.  Also, I think the senators believe it is easier to justify delaying tactics on questions of "character" and similar traits -- up to and including filibusters, and certainly including digging into her record and then complaining she has not been sufficiently forthcoming about her record -- than it is to justify similar tactics when they focus on matters of substance.

And, indeed, that is what we have seen so far with the early commentary on Kagan, from both left and right.  The questions have been less about her substantive views, and more about whether she is qualified for the job, whether she has argued enough cases, whether she really deserved tenure based on a small number of (excellent) articles, her actions with respect to military recruiters, her hiring record as dean, and so on.  The senators and the commentators may say they really want a substantive discussion about Kagan.  But from where I sit, we are likely to continue to get Kabuki all the way down.

Posted by Paul Horwitz on May 11, 2010 at 10:42 AM in Paul Horwitz | Permalink


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