Solicitor General Elena Kagan, President Obama’s nominee to succeed John Paul Stevens as an Associate Justice of the Supreme Court, wrote in 1995 that the confirmation hearings had turned into a “vapid and hollow charade.” Since she wrote those words, the hearings have only grown vapider and hollower. And my initial thought upon last night’s official announcement that Kagan would, indeed, be the nominee, was that this summer we’d see the vapidest and hollowest hearings of them all.
It has become a truism that President Obama nominated Kagan not only for her youth, but also for her lack of a paper trail on our country’s hot-button political issues. One may easily assume on this latter point that Kagan’s confirmation hearings will reflect her ideological guardedness. She has given the public very little of her personal views, and what views she has revealed she may deflect as reflections of her bosses’ thinking in her capacities as law clerk to Justice Thurgood Marshall or as associate White House counsel to President Bill Clinton.
But there are several reasons why Kagan’s confirmation hearings may not be the sequel to Robo-Soto, last summer’s impossibly boring C-SPAN blockbuster.
First, Elena Kagan is not Sonia Sotomayor. Kagan will not inspire among Republicans on the Senate Judiciary Committee the same fear of runaway identity politics as Sotomayor had done even before her “Wise Latina” remark became the shorthand buzzword for a judicial activist supercharged by minority status. No matter how many times her inquisitors invoked Miguel Estrada to prove they did not fear Sotomayor for her ethnicity, there remained the palpable sense that Sotomayor had to convince skeptic Senators that she would not reshape our laws to comport with a caricatured Hispanic’s-eye view of America.
In contrast, Kagan’s lack of “otherness” will keep the Senators from framing her liberalism as springing from such “illegitimate” sources as identity and experience. Kagan will have a freer hand, then, to pitch her liberal jurisprudence–if she has one–without giving her antagonists the opportunity to hit a race-and-class-based home run. On the other hand, however, Senate Republicans may not have the same reticence to attack Kagan when no fear exists of their being branded racist.
Second, if the Senate Republicans come out swinging against Kagan’s personal stance as Dean of Harvard Law School in banning military recruiters from campus over “Don’t Ask, Don’t Tell,” then Obama wins. In the absence of any record on Kagan’s abortion views, her antagonists will sieze her views on gays in the military to rally social conservatives in time for the midterm elections. But this line of attack appears to be a loser: appeals to God, guns, and gays lost their power after the 2004 Presidential election. With DADT support dwindling and our top military leaders calling for its repeal, the fact that the Court unanimously held against a coalition of law schools’ 2006 constitutional challenge to the Solomon Amendment–which tied federal funding to allowing military recruiters on campus–will mean little to the public. Rather, the senators will appear to be simple homophobes engaging in impotent political anachronisms.
Third, Kagan’s comments on the confirmation process as a “vapid charade” will come back to haunt her. She may turn this into a good thing if she defends rather than disowns her fifteen-year-old statement. Certain senators may feign offense and indignation, but if she can frame her condemnation as one against nominees and senators, Democrats and Republicans, then perhaps we may see the first few rays of honest reckoning with our broken process since Clarence Thomas condemned it as a “high tech lynching.” But whereas Thomas’s comments came from his particular experience before the Committee, Kagan may speak to the less personal, but no less destructive impact our substance-less confirmation hearings have had on our country’s conversation about law and politics.
Now, do I think any of this is going to help our current state of the Senate’s advise-and-consent role? No. If Obama wanted a referendum on a quarter-century of confirmation wars, he would have nominated Judge Diane Wood to step up to the Senate and defend her abortion and religion decisions against Senator Sessions’s simple-minded slogans. Instead, Obama selected someone who, like then-Judge John Roberts before her, can charm her way past the gatekeepers without saying too much.
Still, I hold out hope for a surprise. If a Supreme Court nomination does not amount to an ideological change on the bench, then at the very least it should spur a systemic shift in the confirmation process.