Robert Barnes and Amy Goldstein report that Elana Kagan predictably played things close to the vest in her confirmation hearings, as is the rule these days. This is, in fact, why I didn’t watch one second of them, because I don’t find them at all enlightening.
Republican senators pressed Kagan on the issues that have dominated her hearings from their side: her opposition to the military’s “don’t ask, don’t tell” policy on service by gays, her actions on “partial birth” abortion during the Clinton administration, and her views on gun rights and whether there is a constitutional right to same-sex marriage.
Democrats repeatedly denounced the Roberts-led court as an activist bunch bent on finding new rights embedded in the Second Amendment, favoring corporations over workers and reaching out to demolish campaign finance regulations passed by Congress [...]
Kagan defended herself but tried to stay largely out of the fray. Leahy said she answered more than 500 questions during 17 hours of testimony, although Republicans and even some Democrats might quibble with the word “answered.” It is a familiar complaint at confirmation hearings, yet Kagan was a contrast to last year’s nominee, Justice Sonia Sotomayor.
At least one Democratic Senator has had enough of this trend, and you should expect him to vote no on Kagan, both out of committee and on the floor of the Senate. That would be Arlen Specter. He was completely exasperated with Kagan yesterday.
Sen. Arlen Specter (D-Pa.), a perennial wildcard in Supreme Court confirmation hearings, cut short a line of questioning to nominee Elena Kagan today after he said she was not giving him substantive answers.
Specter warned that he was struggling to find a reason not to vote against her.
“You have followed the pattern which has been in vogue since Bork,” he said, referring to conventional wisdom that Supreme Court nominees have been hesitant to say much about their legal views after the nomination of the very substantive Judge Robert Bork failed in 1987. “It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further.”
Specter asked Kagan whether she agreed with certain standards for finding legislation unconstitutional, and because he was talking in the abstract about the standards (the rational basis test, the “congruence and proportionality” test), Kagan refused to answer the question. “I can’t sit at this table without briefing, without argument, without discussion with my colleagues, and say, ‘Well, I don’t approve of that test. I would reverse it.’” Well, Specter just couldn’t stand that answer. He felt that applying the tests was something Kagan could have committed to analyzing. You can see the exchange above.
Specter’s leaving the Senate next year, he has nothing to lose from voting no. I think he’ll hold on that. It probably doesn’t affect Kagan getting confirmed, but if it in a small way moves Supreme Court nominees to actually answer questions about their judicial philosophy and not appear as a blank slate, all to the better. This trend of slippery evasion does no service to democracy. At this rate, you might as well not even have the hearings if performances like this can yield advise and consent from the Senate.
UPDATE: Jeffrey Rosen disagrees that the hearings lacked substance.