Dan Froomkin joins in calling for substance in Kagan's confirmation hearings, a standard Kagan herself called for in an article 15 years ago, when she called the Supreme Court confirmation process "a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."
Froomkin's argument isn't based just on the Kagan nomination, but on the process itself, and the need to put in place more stringent procedures for when the next Republican president nominates extremist, activist conservative judges in the Roberts and Alito mold.
The White House is indicating that, now that she is a Supreme Court nominee herself, Kagan doesn't want to live up to her own standards.
But as she travels to Capitol Hill Wednesday to begin her courtship of senators, there's plenty of reason why those senators should ask her to heed her younger self.... Indeed, by being upfront about her views, Kagan would establish a hugely important precedent, even before joining the court....
Kagan herself has publicly backed away from her earlier writing. In her February 2009 confirmation hearing to become solicitor general, Sen. Orrin Hatch (R-Utah) asked her how she squared her belief that judicial nominees should share their views on constitutional issues with the principle that judges should be impartial.
"I'm not sure that, sitting here today, I would agree with that statement," she said.
"I wrote that when I was in a position of sitting where the staff is now sitting, and feeling a little bit frustrated that -- that I really wasn't understanding completely what the judicial nominee in front of me meant, and what -- what -- what she thought," Kagan said....
But Kagan's new-found reluctance only makes her old argument that much stronger; it simply puts the burden on the Senate to assert itself....
The critically important role senators have in a Supreme Court confirmation is to reject any presidential nominee whose philosophy is genuinely radical -- whose thinking about liberty and tyranny, for instance, is not simply a reflection of political differences, but is so extreme that it is outside the American legal tradition.
The fact is that while Democratic presidents have lately tended to nominate only somewhat liberal or even centrist justices, modern Republican presidents have been so influenced by far-right legal cabals that their nominees have increasingly promoted severe judicial philosophies that, if publicly expressed, would actually be untenable to most Americans. Their views on severely limited individual rights, expansive corporate rights, and nearly unlimited executive power beget a vision of America that is unrecognizable and distasteful to all but the most extreme conservatives.
There are already four such zealots on the Court. Without a new precedent that allows senators to demand answers -- and empowers them to balk at confirming any nominees who refuse to openly discuss their judicial philosophy -- the Court could too easily shift roles from being the last bulwark against tyranny to being its enabler.
For the Kagan nomination specifically, her lack of a judicial record and relative few academic articles really does demand a careful and exhaustive examination of her judicial philosophy. But as Froomkin argues, the future of the Court, and to a large degree our nation, demands it even more.