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Kagan “Loved” the Bork Hearings

President Obama’s nominee to the U.S. Supreme Court Elena Kagan “loved what happened in the Bork hearings.” 

“The Bork hearings were great…the Bork hearings were the best thing that ever happened to constitutional democracy.”  (HT to BreitbartTV and Big Government)

Even our lefty buddies at the Daily Kos want Kagan held to her own standard.

Elena Kagan’s 1995 article critiquing the SCOTUS nomination process, rather unfavorably, has rightly become a critical area of focus on her nomination. Given the lack of judicial history she brings to the nomination–no paper trail of arguments, decision, concurrences or dissents–the Senate Judiciary committee should take her 1995 advice and embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.”

Great point.  It seems there is a right-left coalition building to force nominees to answer direct questions at the Senate Judiciary Committee hearing scheduled for Monday, June 28th. 

As referenced in the Daily Kos post, Elena Kagan herself wrote a 1995 review of Stephen L. Carter’s book, “The Confirmation Mess.”  In that article, Kagan argued that the consideration of a nominee to the Supreme Court should be a “meaningful discussion of legal issues.”  Will Kagan abide by her own standard as spelled out by Kagan below?

When the Senate ceases to engage nominees in a 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.

Kagan wrote in her book review that she disagreed with Carter that the process “focused too much on a nominee’s legal views” and she praised the tough standard used during the Bork hearings.

The recent hearings on Supreme Court nominees, though, suggest another question: might we now have a distinct and more troubling confirmation mess? If recent hearings lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what Carter describes: not that the Senate focused too much on a nominee’s legal views, but that it did so far too little. Otherwise put, the current “confirmation mess” derives not from the role the Senate assumed in evaluating Judge Bork, but from the Senate’s subsequent abandonment of that role and function. 

Kagan urged the Senate to not abandon the role the process played during the consideration of Ronald Reagan’s nomination of Robert Bork to the U.S. Supreme Court in 1987.  Kagan lamented that hearings in the wake of the Bork hearings were becoming “official lovefests.”

But to observers of more recent nominations to the Supreme Court, Carter’s description must seem antiquated. President Clinton’s nominees, then-Judges Ruth Bader Ginsburg and Stephen Breyer, confronted no unfair or nasty opposition; to the contrary, their confirmation hearings became official lovefests. More important, both nominees felt free to decline to disclose their views on controversial issues and cases. They stonewalled the Judiciary Committee to great effect, as senators greeted their “nonanswer” answers with equanimity and resigned good humor.

Kagan denounced the idea that nominees were allowed to “decline to disclose their views on controversial issues and cases.”  Will Kagan “disclose” her “views on controversial issues and cases?”  If so, will Senators greet her evasive responses to questions “with equanimity and resigned good humor?”  The American people have a right to participate in this process and nominee Elena Kagan should be held to the Elena Kagan standard of 1995.

For a debate preview check out my Red State post of May 10th.

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