It's Time For a Meaningful Discussion of Legal Issues

“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.” Elena Kagan, 1995.

Elena Kagan was correct, judicial nominees, their record, and their judicial philosophy should be thoroughly scrutinized before the Senate awards them a lifetime appointment to the bench. Despite her public statements that nominees should be rigorously vetted, she has been uniquely circumspect about her own views and judicial philosophy. What little we know of Ms. Kagan’s positions raises serious questions regarding her fitness for service on the Supreme Court.

Ms. Kagan, an accomplished academic, has revealed little of her own judicial philosophy. Given the important and complex issues that routinely come before the Court this may not be overlooked. She has served as Dean of the Harvard Law School and has served both Presidents Clinton and Obama. While a distinguished academic, her experience is not necessarily relevant to the serious position for which she has been nominated.

Whether in her academic or political career Ms. Kagan has closely guarded her personal ideology. What little she has revealed should not sit well with the American public.

Ms. Kagan clerked for Justice Thurgood Marshall. In her academic writings she has embraced the statements of Justice Marshall who argued “the Constitution, as originally drafted and conceived, was ‘defective.'”

While Dean of Harvard Law School Kagan banned military recruiters from using the law school’s career services office. She objected to the military’s prohibition on openly gay and lesbian individuals serving in the military. Kagan revealed how strongly she held this belief – she stated that the military recruitment policy caused her “deep distress” and that she believed it to be “a profound wrong — a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community.”

As Solicitor General, Elena Kagan defended the Government’s position in Citizens United v. FEC. She stood before the Court and explained that an overbroad statute could permit the government to regulate both books and pamphlets – but not to worry because “there has never been an enforcement action for books.”

In introducing Elena Kagan as his nominee to the Supreme Court, President Obama revealed that Kagan’s argument in Citizens United revealed more than just her advocacy on behalf of the United States government, but rather revealed her personal philosophy regarding the First Amendment:

“And during her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations.

“Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.

“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the court.

“I think that says a great deal not just about Elena’s tenacity but about her commitment to serving the American people.

“I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

From these few public positions we see the need to thoroughly engage Ms. Kagan in a discussion on her beliefs regarding these important issues. Ms. Kagan’s deeply rooted liberal ideology raised a serious question regarding her ability to function as Solicitor General. As Senator Arlen Specter noted:

“During the course of the hearing, we discussed extensively some of her very deeply held positions. The question was raised by me, given those positions, would she be able to take a contrary position on some statute that she is obligated to uphold in arguments before the Supreme Court. She said she would. But the question remains, when you feel so strongly — and the record will show what she had to say — whether you can really make a forceful argument as an advocate. Theoretically, you can. Lawyers are not supposed to necessarily believe in their positions; they are supposed to advocate. The clash and clamor of opposing views in our adversarial system is supposed to produce truth. Lawyers advocate more so than state their own positions. But there is a degree of concern when the views are as strongly held as Dean Kagan’s have been.

These questions are more important today. Ms. Kagan’s record, writings, ideology, and judicial philosophy must be taken into account by the Senate in deciding whether to confirm her. Members of the Senate should heed Ms. Kagan’s own advice and demand a “meaningful discussion of legal issues.” Now that Kagan herself comes before the confirmation process, perhaps we’ll find that like she argued in Citizens United, “the government’s answer has changed.”