Kagan Day 2: “Vapid and Hollow Charade”?


You can’t blame Elena Kagan for living up to her own billing. In a 1995 law journal article, she criticized Supreme Court confirmation hearings as a “vapid and hollow charade” because nominees would not respond to specific questions about their views on constitutional law. A few years later, she described the one exception – the 1987 Bork hearings – as “the best thing that happened, ever happened, to constitutional democracy.”

Day 2 of the Kagan hearings are shaping up as more charade than the best thing to happen to constitutional democracy. Like nominees before her, she is generally staying away from answering questions that attempt to get at her views on current constitutional democracies. The farthest she has gone, I think, is saying that she believed the Obama administration had “very strong arguments” in favor of the limits on corporate speech during elections. But even then, she refused Senator Specter’s invitation to characterize the Supreme Court’s decision, which rejected the administration’s decision. Otherwise, she has successfully evaded attempts by Senators to divine a great deal about her philosophy for interpreting the Constitution on specific legal questions.

In fact, the only area where the Republicans gained much purchase seemed to me only to help deflect attention away from Kagan’s constitutional views. Senator Sessions seemed to score points criticizing Kagan for her decision to bar military recruiters from Harvard Law School because of the military’s don’t ask, don’t tell policy. It seemed to me clear that she did so even when she had no legal right to bar them. But her decisions as dean on military recruiters doesn’t have much to do with her constitutional views as a Justice; at best, it might raise questions about her views about whether the government can require universities that receive federal money to obey conditions. Republicans instead have used the affair to suggest that Kagan is hostile to the military — a political point to score during a time of war, but not one that goes to Kagan’s likely votes once on the Court.

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  1. Profile Photo Member

    I disagree that Sessions scored points. It seems clear her decision was pro-gay not anti-military and yet he persisted in trying to peg her as such. She was effective in deflecting the point. It feels as though the ground underneath that issue shifted since Sessions was involved and he is not astute

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  2. Profile Photo Member

    (buggy site issue)

    felt like Sessions was not astute enough to pick up on it. He should have asked if she felt she was justified in dodging the law, if she agreed with the policy, and if the military policy was in fact discriminatory. That would have been revealing.

    Otherwise the nod and wink over non-answering of questions was distasteful. She was unlikable and the whole atmosphere reinforced the Washington clubbiness that America despises.

    It felt like the Senators were phoning it in.

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  3. Profile Photo Inactive
    Trace Urdan: I disagree that Sessions scored points. It seems clear her decision was pro-gay not anti-military…. ยท Jun 29 at 6:36pm

    I don’t think she cares much what any expert thinks, military or non-military, and that’s part of the problem. Her issue is the important issue. What does the military know about homosexuality, compared to the Dean of Harvard Law School? How dare they tell her what to do? She has important social engineering to do.

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