Fifteen years before she was nominated to the Supreme Court, Elena Kagan wrote in a book review that the confirmation process for justices had become a “farce,” and that senators should press for detailed accounts of a nominee’s views.
“When the Senate ceases to engage nominees in meaningful discussion of legal issues,” Kagan wrote in a review of The Confirmation Mess by Stephen Carter, “the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”
Carter had written that the “mess” was that senators asked too much about a nominee’s legal views, leading to a Supreme Court full of the closed-minded. Kagan, however, argued that “The problem was the opposite of what Carter describes: Not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.”
You can read the 25-page review here (PDF).
Asked today about Republican senators who may be gearing up to use Kagan’s writing as a chance to press her for her legal views, White House senior adviser David Axelrod said it’d be a “newfound enthusiasm” on the part of the senators.
“I’m interested in why some of these folks on the Hill are so enthusiastic about what you call the Kagan Standard, because I didn’t hear them articulating it when Justice Roberts was before them. I didn’t hear them articulating it when Justice Alito was before them,” Axelrod said. “So if they’re enthusiastic about it, it’s a newfound enthusiasm.”
“I have every confidence that she is going to be forthright and candid within the bounds of what’s appropriate,” he added.
One Republican senator has already expressed opposition against Kagan — in part because of these comments.
“I am also concerned about the seeming contempt she has demonstrated in her comments about the Senate confirmation process,” wrote Sen. Jim Inhofe (R-OK) in a statement.
Kagan is expected to face the Senate Judiciary Committee before the Fourth of July recess. She was confirmed by the Senate last year in a vote of 61-31 after sailing through a judiciary hearing that only last two hours. She was questioned mostly on memos she had written as a clerk for Justice Thurgood Marshall — one of which she dismissed at the hearing as “the dumbest thing I ever heard — and her limited experience as a litigator.
