More on Specter’s Kagan Problem: What do Specter and Kagan Have in Common?

Republican turned Democrat Senator Arlen Specter and Elena Kagan have one thing in common when it comes to the Senate's role in advice and consent: Both have expressed frustration with nominees' unwillingness to be more forthcoming during their confirmation hearings. Ironically, it was Senator Specter (D-PA) who took to the Senate floor in March of 2009 and explained that he was voting against Elena Kagan for Solicitor General for her reticence during their meeting and correspondence. First, however, is an interesting note from ABC News that reveals Kagan's frustrations with the Supreme Court confirmation process that she shared following her time as a staff attorney on the Senate Judiciary Committee during Justice Ginsburg's confirmation hearings:

"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

Kagan's opinion appears in a 1995 book review of "The Confirmation Mess" by Stephen Carter. In her lively and at times humorous piece, Kagan takes issue with Carter's 1995 thesis that the process has broken down, in part, because Senators are too focused on getting candidates to reveal their views on important legal issues.

On the contrary, Kagan wrote, the process has not broken down because nominees are pressed too hard, but because they are not pressed hard enough (emphasis added).

"Senators effectively have accepted the limits on inquiry," Kagan wrote. She said the process had become one where "repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Blaming both the nominees for stonewalling at times and the Senators for failing to probe, Kagan wrote that the hearings "serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government."

Interestingly, Kagan points to the confirmation hearings of then-D.C. Circuit Judge Robert Bork as an example to follow:

Kagan argues that the Bork hearing should be a "model" for all others, because even though it ended in the candidate's rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

"The real 'confirmation mess' " she wrote, "is the gap that has opened between the Bork hearings and all others."

"Not since Bork," she said, "has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."

"The debate focused not on trivialities," she wrote, but on essentials: "the understanding of the Constitution that the nominee would carry with him to the Court."

I don't think anyone realistically thinks that Kagan is going to be as forthcoming (or, frankly, as confrontational) as Bork. However, as a former insider into the process who is on the record with her frustrations with nominees playing it safe, Kagan has little excuse to be evasive in her hearings. By being more forthcoming, she can help reverse a trend that we have seen on both sides in the confirmation process, a trend that Senator Specter has also found troubling.

As Matt wrote earlier, as a Republican, Senator Specter voted against Elena Kagan for Solicitor General. Please click here for a video of his explanation from the Senate floor.

Hopefully, Solicitor General Kagan decides to open up a bit more during her meetings with Senators this time around than she did with Specter and others before. If she doesn't, then what gives the 31 senators who voted against her the first time for Solicitor General a reason to vote for her this time? The Solicitor General, while an important position, is not a Constitutional officer, and its duties are to represent the Obama administration's legal positions, not to be a neutral arbiter on our nation's most powerful and important judicial body. Moreover, Solicitors General serve at the pleasure of the President, while Supreme Court justices serve for life. In sum, the decision is much more important, and as a result, the bar is set much higher for Supreme Court justices than Solicitors General. Moreover, an argument can be made that a nominee with such little track record, including no judicial opinions to analyze, also has to explain his or her views on the Constitution and on the proper role of a judge in decisionmaking. (More on Kagan's lack of a track record later, but suffice to say, there isn't much there.) 

If Kagan doesn't open up, we will see if Senator Specter, now fighting for his political life, has the same fortitude he did the first time around.