Elena Kagan's 1995 article critiquing the SCOTUS nomination process, rather unfavorably, has rightly become a critical area of focus on her nomination. Given the lack of judicial history she brings to the nomination--no paper trail of arguments, decision, concurrences or dissents--the Senate Judiciary committee should take her 1995 advice and embrace "the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments."
Yesterday, Arlen Specter met with Kagan. Specter now has the distinction of being the only Democrat to have voted against Kagan's nomination to Solicitor General, though he was a Republican when he cast that vote. He cited then her refusal to answer some of his questions as the reason for his vote. That vote, and Kagan's standard, apparently came up in their discussion yesterday.
Specter said Kagan also reiterated her criticism that the Senate confirmation process yields little information about Supreme Court nominees and that one justice was less than forthcoming during his or her confirmation hearing.
Specter declined to identify the justice, but said it was not Chief Justice John Roberts, who Specter himself has complained was less than candid during his 2005 hearing.
The Roberts' nomination is an instructive one, and one to keep in mind when approaching any Supreme Court nomination. Roberts was exceedingly unresponsive, reams of documents from his days in the Reagan administration were withheld, and the Judiciary Committee was subjected to the bland assurances that Roberts was only going to be "calling balls and strikes." Advice and consent largely went out the window when the Judiciary committee rubberstamped Roberts, and we ended up with another conservative zealot--and a young one at that--on the highest court of the land for life. This is not to compare Kagan and Roberts, but to point out a flaw in the process when the Senate allows a nominee to stonewall.
That's a principle then-Senator Barack Obama agreed with when approaching another nominee with scant public record, as Greg Sargent
found
Turns out Barack Obama himself agrees with this. Or at least he did back when he was a senator and Harriet Miers was nominated by then-President Bush. According to several news sources in Nexis, Obama put out this statement in 2005:
Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.
It's important to make a critical distinction here: Obama was not saying that lack of judicial experience is necessarily a disqualifying factor, as some Republicans are now hinting. He was merely saying that we needed to know more about Miers.
It's also not to compare Kagan and Miers in intellectual capacity, experience, or fitness to serve on the Court. Information and forthright testimony should be the minimum requirement for any nominee. The Kagan Standard should become the permanent standard for SCOTUS nominees.