The Kagan Hearings: What We Learned

Over the course of three days filled with questions both serious and frivolous, Supreme Court nominee Elena Kagan seemed to be gliding toward confirmation as the next justice to sit on the court. But the lack of revealing information provided by the nominee has lead many people to question the entire process. How did Kagan perform and are the hearings a useful tool for assessing a potential justice's views?

  • Ilya Shapiro of the conservative believes that too much about the nominee's views remain unknown to make an informed decision. "I do not yet know how I would counsel a senator to vote on Kagan’s nomination - she’s more than qualified in terms of legal knowledge, indeed better qualified in terms of temperament than to be solicitor general - but I know that I’m disturbed by much of what I’ve witnesses lo these last 48 hours. Last year at this time I suggested that the argument for Sonia Sotomayor’s confirmation was 'not proven,' she was fine at her hearings but did not carry her burden of persuasion. That may well be the case again".
  • The New York Times, while expressing some concern over her forthrightness, supports Kagan's confirmation. "We hope Ms. Kagan was being candid. Frankly, we had expected somewhat more from her, considering her 1995 article disparaging the hearings process as a 'vapid and hollow charade.' She did firmly reassert her position against the military’s 'don’t ask, don’t tell' policy and did not shy away from her opposition as solicitor general to the court’s tragic decision to allow unlimited corporate spending in elections. Her legal scholarship has been impressive, as was her work as dean of Harvard Law School and adviser in the Clinton White House. After the hearing, we have increased confidence she will be a good addition to the Supreme Court."
  • Dahlia Lithwick of Slate says that Kagan mixed impressive legal knowledge with a winning personality that charmed even her harshest critics. "Despite the one-liners and the borsht belt shtick and the toothy grin, Kagan gives the impression of being extremely serious about the law. When she's asked what she's passionate about, the law is her only answer. Yes, she does some tap dancing, and we hear some of the same dodges and weaves we always hear. (Coburn tells her she should be on Dancing With the Stars.) But she fields the senators' legal questions with gravity, sincerity, and nuance—all the while giving the impression that she is larger than life in a proceeding that renders almost every other nominee microscopic."
  • Stuart Taylor Jr. of Newsweek wonders if it's time to drop the hearings altogether. "The rather unilluminating hearings this week call to mind proposals by confirmation experts that the Senate altogether abandon testimony by judicial nominees. Congress could return to the practice that it followed until the middle of the last century, when it voted based on judicial nominees’ records without calling them to testify at all," adding that "the best counterargument is that confirmation hearings are the only chance that the American public will ever have to assess a Supreme Court nominee who will serve for life. True enough. But how much assessing is really going on? Polls suggest that fewer than 20 percent of the public can even name Kagan as the current nominee."
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