Many commentators and some Republican Senators have been suggesting that Supreme Court nominee Elena Kagan should undergo particularly rigorous questioning in the Senate because the "paper record" setting out what she believes and stands for is rather thin. This thinness is due in part, say some Kagan detractors, to the fact that she is not, and has never been, a judge. In this column, I discuss the relevance of Kagan's not having served in the judiciary to the adequacy of her paper record, and discuss more generally — based on something that is in her record — what the hearings might feature.
Kagan Lacks Judicial Experience — But So Did Some Influential Prior Justices
Let's begin with the criticism that Kagan's record is opaque because she hasn't ever been a judge. It's true that every member who has been appointed to the Court for the last 40 years or so had some judicial experience, and that every Justice today came to the Court from the United States Court of Appeals.
But, of course, great (that is, influential) Justices like Earl Warren, William Rehnquist, and Hugo Black lacked significant judicial experience before their appointments to the Court.
Equally importantly, many other, more recent, Justices lacked enough judicial experience to really tell us much about the kind of Justices they would likely be if confirmed. It might initially seem that the Senate's task is easy when a nominee has been a judge: simply read a jurist's past decisions to glean his/her approach to judging, and compare that approach to the Senate's own vision(s). But, in fact, past decisions may not tell us much, and may indeed be misleading in what they do suggest.
For one thing, stare decisis — the principle that precedent should generally be followed, and that precedent from higher courts is binding on judges lower down in the pyramid — limits all lower courts, federal and state. This principle may force individual judges to reach decisions and embrace reasoning that are deeply in conflict with the judge's own views.
Ironically, the willingness to reach such a decision, or employ such reasoning, based on precedent, despite the judge's personal views, may in fact illustrate a virtue, even though, during the confirmation process, past respect for the rule of stare decisis places limits on how much we can really learn from a lower court judge's record.
Moreover, some existing state (as opposed to federal) court judges may not have had occasion to consider many of the kinds of federal questions that regularly confront the Supreme Court. (Because certain federal questions can be easily litigated in federal court, they arise infrequently in state court; indeed, some federal issues, such as those regarding federal criminal law, are almost never heard in state courts.)
Thus, the kind of judge whose record tells us a lot about the kind of Justice s/he will make is a lower federal court judge who has served long enough such that s/he will have confronted many important questions on which (confining) Supreme Court precedent has been sparse. Some of the Court's current Justices — like Justices Alito, Kennedy and Sotomayor — had just such a record. But others, like Chief Justice Roberts or Justice Thomas (or retired Justice Souter, who was appointed in the 1990s), did not serve on a lower federal court for a sufficiently long period of time to generate a large number of probative rulings that provided a meaningful sense of how each might rule when freed from the duty to abide by the rulings of a higher Court.
Indeed, Chief Justice Roberts's paper record, prior to his time on the Court, was about as thin as Dean Kagan's. When Roberts was nominated, he had no lengthy judicial track record, but rather a distinguished history of serving particular clients — specifically, Presidential Administrations and private clients. Kagan, for her part, has represented mainly Presidential Administrations. And, of course, a lawyer representing clients must make arguments based on what the client wants to accomplish, rather than what the lawyer believes is necessarily right as a matter of law.
Thus, on the whole, for Roberts there were — and for Kagan, there are — not very many specific articulations of viewpoints to go on. Instead, the President's nomination was more probably grounded on non-public information he had, and/or a general sense of each nominee's philosophy based on the organizations, institutions and Administrations the nominee had chosen to affiliate with in the past. But my suggestion here is that there was not much more to go on for Roberts than there is for Kagan, and yet Roberts's sparse record didn't bother Republicans during his nomination and confirmation process.
Can Other Sources Tell Us What We Need to Know About What Kagan Would Be Like as a Justice?
In Kagan's case, we might expect that we could glean a lot from her scholarship as an academic. After all, law professors (unlike lower court judges and practicing lawyers) are constrained by neither precedent nor a client's need, in the positions they take. Academic freedom means that scholars are able, and encouraged, to say what they really believe.
Still, even here, we need all be sensitive to the nuanced roles that academics play. Professors are taught to be, and rewarded for being, provocative. Thus, an academic will sometimes float an argument in order to generate discussion and dialogue, even when he is not yet convinced that he is right. (Some of unsuccessful Supreme Court nominee Robert Bork's controversial scholarship may belong in this category.)
Yet for Dean Kagan, the real problem is not that we might overread her scholarship, but rather that there may not be enough for us to read. Either because she was interested and involved in Deaning early in her career, or for other reasons altogether, she simply didn't produce a large number of meaty law review articles or essays or books. There are, to be sure, some important pieces she wrote; she did very careful work in the area of free speech doctrine, and wrote a substantial article on various aspects of administrative law. She also wrote an interesting essay on hate speech codes for the UC Davis Law Review about 15 years ago (at my invitation and the invitation of my frequent FindLaw co-author, Alan Brownstein).
The Book Review Kagan Authored that May Play an Important Role During the Hearings
But there is one piece in particular that Kagan wrote that may well stand out, and become central in her confirmation hearing. In it, she didn't talk about her views concerning Roe v. Wade, or Bakke, or Miranda, or the death penalty, or other momentous substantive constitutional issues of our day. But she did talk about a big and timely question of constitutional process — the proper role the Senate should play in the confirmation hearings.
In a 1995 University of Chicago Law Review book review, Dean Kagan powerfully critiqued a book written by Yale Law professor Stephen Carter, in which Professor Carter essentially argued that the Senate should avoid asking specific and substantive questions about a nominee's constitutional vision, but should instead largely satisfy itself with an inquiry into the nominee's qualifications, temperament, and character.
Disagreeing sharply with this view, Professor Kagan labelled the current state of affairs — in which nominees avoid answering specific questions ("stonewalling" is the term she uses) about specific constitutional controversies of our era — a "mess." She characterized the modern confirmation process as lacking in "seriousness and substance," and as an exercise that "takes on an air of vacuity and farce."
In her book review, Kagan observed that without specific questions and meaningful answers, the Senate isn't doing its job and the country can't learn what it needs to know; general discussions of philosophies simply are not revealing enough. Nominee "comments on particular issues" are necessary.
Kagan criticized the Senate for not putting more pressure on the nominees, and, importantly, she pointed out that recent nominees' reasons for refusing to answer specific questions — that answers would compromise judicial independence — were hogwash (an "especial red herring" she termed it.) If this reason for clamming up were right, she correctly observed, then "Justice Scalia [would be] in a permanent state of recusal, given that in the corpus of his judicial opinions he has stated unequivocal views on every subject of any importance."
I myself have expressed views similar to Kagan's, on this website and in academic writings, both before and after Kagan's book review. In my writings, I've explored in much more detail why the explanations nominees have proffered for refusing to answer simply don't hold up to scrutiny. For me (and apparently for Dean Kagan), a specific question by the Senate is fair game so long as it does not seek a promise or a commitment from the nominee, in form or effect, as to how s/he would rule if confirmed. So I laud Dean Kagan for the views she expressed in this 15-year-old book review.
In Light of Kagan's Position in Favor of Searching Senate Questioning, Must She, as a Nominee, Provide Answers to Such Questioning?
The question now, of course, is whether (or how) Kagan can avoid providing specific answers to questions about her views on the hot-button constitutional issues, given that she is on clear record that the Senate's job is to obtain these answers and that there is no reason that such answers can't be given by a nominee.
To be sure, at other points in her book review, Kagan does point out that nominees understandably conform their behavior in the hearings to that of many prior nominees, and that in their hearings Justices Ginsburg and Breyer sincerely believed the mantra about judicial independence that they offered to explain their refusal to answer certain questions. But unless Dean Kagan says that she now agrees with Ginsburg's and Breyer's flimsy reasoning — which would be hard to do, given the force with which she argued to the contrary in 1995 — we may very well get some meaningful and specific answers from Kagan in the hearings to fill in the somewhat sparse record.
Cross-posted from FindLaw.com.