The surreal scenario I described in yesterday's satirical piece does not need to happen, and I hope against hope that it doesn't.
Who knows, Elena Kagan could end up heeding her own past exhortations to replace the "charade" of confirmation hearing meaninglessness with substantive revelations of "her views on important legal issues." Or she could fulfill Barack Obama's recent wish for "as much information and forthright testimony from [her] as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court."
These better outcomes are theoretically possible, despite her latest indications that she has decided to, uh, reconsider being open and precise about her legal philosophy. As Dan Froomkin observes, a willingness to candidly share her views on important issues, views which so far have remained largely hidden or inscrutable, would break from a recent, worsening trend and create a powerful and salutary precedent for the future:
Indeed, by being upfront about her views, Kagan would establish a hugely important precedent, even before joining the court.
The current say-nothing approach to confirmation hearings dates back to 1987, when Reagan nominee Robert Bork engaged senators in a robust dialogue about judicial philosophy, exposing views on individual rights that were far outside the mainstream. The Senate rejected his nomination.
The approach was then formalized in 1993, when Ginsburg, a Clinton appointee, invoked what became known as the "Ginsburg Rule" to decline pretty much any question she wanted on the grounds that the issue might come before her on the Court, so an answer could jeopardize her judicial impartiality.
. . .
Continued adherence to the Ginsburg Rule could let another Bork on the court -- in fact, it has arguably done so already, in the form of the outwardly more reasonable but equally radical John Roberts and Samuel Alito.
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.
I still put at greater than fifty percent the probability that Kagan at her confirmation hearing will respond no more meaningfully to questions about her ideology than "Grogggrrrrlm." I would, however, be thrilled to be proven wrong by her surprise embrace of candor, clarity, and specificity during the American public's last remaining chance to find out what kind of a justice she might be, before she permanently and irrevocably becomes one.
I get no pleasure in making these kinds of critiques. I don't search for reasons to stick a liberal finger in the eye of Barack Obama. I would love nothing more than to support Elena Kagan as the new Supreme Court nominee as confidently as I did Sonia Sotomayor. But I am not a blind follower of Democratic leaders and their judgment of things I can decide for myself.
It would just be nice if anyone other than the Kagan Whisperers had the necessary information to properly formulate such a judgment. I, for one, will be watching.