The following is a guest post by Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. The opinions expressed are his own.
If you followed Elena Kagan’s performance at her Supreme Court nomination hearing this week, you probably didn’t learn much that you didn’t already know. Yes she’s engaging, knows the law backward and forward, and can rattle off clever one-liners—Jews go to Chinese restaurants on Christmas!—but we still don’t know how she views the Constitution or what she thinks about various developments in constitutional jurisprudence.
In short, the hearings this week were plenty more interesting than Sonia Sotomayor’s cramped and wooden performance last year, but still we can only infer the nominee’s judicial philosophy from admission that she’s a “lifelong Democrat” with “largely progressive” views. Shocking!
And it’s all the more disappointing that this was the case given Kagan’s strikingly prescient 1995 law review article, “Confirmation Messes,” in which she lamented the lack of substance at these hearings: “When the Senate ceases to engage nominees in 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.”
Her article continues: “What must guide any such decision [of whom to nominate and confirm], stated most broadly, is a vision of the Court and an understanding of the way a nominee would influence its behavior. This vision largely consists of a view as to the kinds of decisions the Court should issue. The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add . . . and the direction in which she would move the institution.”