The Kagan Standard


I think I share Sarah Binder’s cynicism about the looming Elana Kagan confirmation hearings:

12:46 [Comment From Tim: ] Given the dearth of material on Kagan, should her confirmation hearing be held to the standard she outlined in her 1995 University of Chicago Law Review article in which she argues the Senate should embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments”?

12:48 Sarah Binder: Great question. Yes, she should certainly be held to that standard. But there’s little chance that Kagan will be more forthcoming about her judicial views and/or philosophies than previous nominees before the SJC have been. There’s certainly some validity to the view that nominees can’t prejudge cases by stating opinions on how they might rule. But giving the Senate a sense of how they view the Constitution and constitutional interpretation certainly seems a reasonable standard. This is a lifetime appointment, and this is the Senate’s only opportunity to exercise accountability, as it were.

Having now witnessed the Roberts, Alito, and Sotomayor confirmation processes it seems to me that there’s no longer much point in lamenting the way this works. It’s lamentable, but apparently inevitable. The thing to do is to seek structural reforms to the way the federal judiciary works, not just whine about the confirmation hearings. My views on this matter are actually pretty radical, but a non-radical starting point would be fixed terms for the justices.