WASHINGTON (AP) - Want to know Supreme Court nominee Elena
Kagan's thoughts about the legality of the White House's new health
care law? How about her position on the constitutionality of gay
marriage, or Arizona's new law on illegal immigration?
Too bad. If Kagan follows the playbook for nominees, she won't
be speaking her mind about legal, political or social issues raised
by the senators whose votes she needs for confirmation.
Unless she breaks the traditional silence of other recent
Supreme Court nominees - something the nominee herself called for
in 1995 - senators will have to vote on elevating Kagan to the
nation's highest court without finding out where she really stands
on today's hot-button topics.
Kagan was to start meeting with senators at the Capitol on
Wednesday. Republicans are warning that a lack of candor could be
detrimental to her getting bipartisan approval.
"Ms. Kagan failed to answer many questions posed by senators
prior to her confirmation as solicitor general," Sen. John Cornyn,
R-Texas, said. "This failure led many members to oppose her
nomination. I hope that she will now more willingly respond to
reasonable and relevant questions."
But ever since Robert Bork expansively explained his theories of
the law to the Senate Judiciary Committee in 1987 and failed to get
Senate confirmation, Supreme Court nominees have kept their
personal opinions about controversial questions to themselves as
much as possible.
Justice John Paul Stevens, the man Kagan wants to replace, says
that is the way it is supposed to be.
"It's quite unfortunate to be trying to pin down judges on
particular issues," Stevens said while speaking at a judicial
conference last week. "What they've said in published opinions is
one thing, but speculating about issues is another."
Stevens was nominated less than three years after the landmark
Roe v. Wade abortion decision in 1973 but wasn't asked a single
question about abortion at his confirmation hearing. He also
recalled longtime Senate Judiciary Chairman Strom Thurmond of South
Carolina bringing him to his office to talk about Thurmond's view
of capital punishment.
Thurmond never asked Stevens his opinion, thinking that would be
Some senators agree. Sen. Jon Kyl, R-Ariz., a member of the
Senate Judiciary Committee, was one of the opponents of President
Barack Obama's new health care law and knows some senators probably
want to ask Kagan about it.
Kagan "knows all eyes are going to be on that, and she'll
probably give some platitude about, you know, 'It has a certain
kind of meaning, but I'm not going to tell you how I might rule in
a case like the health care legislation.' And I think she shouldn't
tell us that," Kyl told Fox News. "I don't want a justice who
goes into the court with an idea of how she wants to rule in
certain cases, with a predisposed notion of how justice should come
out. I want her to read each case based on the facts and on the law
and decide it."
Recent nominees have argued that not answering questions on
issues that may come before the court keeps them from being accused
of prejudging issues. Given the number of issues the Supreme Court
may deal with in the future, it also allows them to avoid giving
any answer which may sway a vote in the Senate against them.
Kagan herself argued for a more stringent questioning of Supreme
Court nominees in 1995, words she can expect to hear thrown back at
her by senators.
"Senators today do not insist that any nominee reveal what kind
of justice they would make, by disclosing her views on important
legal issues," Kagan wrote in a University of Chicago Law Review
article reviewing "The Confirmation Mess," a book by Stephen L.
Carter. "Senators have not done so since the hearings on the
nomination of Judge Bork. They instead engage in a peculiar ritual
dance, in which they propound their own views on constitutional
law, but neither hope nor expect the nominee to respond in like
Without stringent questioning, the confirmation process "takes
on an air of vacuity and farce," she said.
One senator, Oklahoma Republican James Inhofe, already has said
he will oppose Kagan, partly because of that article. Inhofe said
he was against Kagan because of "the seeming contempt she has
demonstrated in her comments about the Senate confirmation
Senators place high value on their questions, which can be the
last time a Supreme Court justice is required to answer questions
from an elected official. However, they can't force the nominee to
answer. They can only vote for or against the nominee, something
senators have complained about for years when they haven't gotten
the answers they wanted.
Senators also know that sometimes the answers they get from
nominees don't necessarily foretell how a justice will rule when
sitting on the court.
"We've seen nominees who tell us one thing during our private
meetings and in the confirmation hearings and then go to the court
and become a justice that is quite different from the way they've
portrayed themselves at the hearing," Sen. Herb Kohl, D-Wis., said
to then-nominee and now Justice Sonia Sotomayor at her confirmation
hearing last year.
Senators plan to investigate Kagan's past and come up with
questions they hope will make her reveal her judicial philosophy
and provide some hint as to what kind of Justice she would be.
Kagan would become the only member of the current court who had no
prior experience as a judge, so she has no prior court decisions to
"Given that Ms. Kagan does not have a judicial record, it will
be especially important for senators to inquire as to her views on
the Constitution and the role of the court," said Sen. John Thune,