Monday, May 17, 2010

Should Kagan Talk?

Lots of buzz lately about whether Elena Kagan, President Obama's choice to fill Justice Stevens's Supreme Court seat, should or will actually answer questions during her Senate hearings, or whether she will follow the example of recent nominees and pretty much stonewall everything. Some commentators have enjoyed pointing out that Kagan herself has stated that "the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct." So it might seem that she should be particularly subject to substantive questioning.

Supreme Court confirmation hearings have become a game in which nominees display their skill at avoiding substantive questions. It's a little peculiar. The expressed reason is usually that the nominee doesn't want to "prejudge the issue." It is thought unseemly that the nominee should commit herself to voting a particular way on an issue that is likely to come before her as a judge. But if that is the case, what do we do with actual judges and Justices who have, many times over, committed themselves to voting particular ways on particular issues that come before them? Every Justice who votes on a case is committing himself to voting that way on the same issue the next time around. There's no need to wonder how Justice Scalia or Justice Breyer will vote on the question of whether Congress can abrogate state sovereign immunity; they've both expressed their views on this issue very clearly. Should they be kicked off the Supreme Court? Obviously that's not how it works.

A better reason for a nominee's reluctance to answer questions, I think, should be that they don't know the answer. I remember during Justice Souter's confirmation hearings that a Senator, trying to find some acceptable way to get at the nominee's views on big issues, asked whether the Korean war was constitutional (or perhaps he asked whether it was a "war" in the constitutional sense, I don't remember exactly). Souter declined to answer, citing the usual reasons. But I think a better reason would have been this: look, we don't hire people for the job of Supreme Court Justice because they have the answer to every difficult question written on their shirt cuffs. If that question really arose in real litigation, it would get bandied about in the lower courts for months or even years, parties would make every conceiveable argument on both sides, it would come up to the Supreme Court in a particular context, it would be extensively briefed and argued there, and only then would a Justice be called upon to opine on it.

Justices aren't and shouldn't be expected to know everything instantly. They get to look smart because they make decisions by choosing between outstanding arguments made by smart counsel. I suppose it wouldn't play well on TV if Souter, asked whether the Korean war was constitutional, had said, "oh, I have no idea," but that would probably be a more honest reason for declining to answer. There's a reason why we have an elaborate process for getting answers from the Supreme Court. The questions are hard and the answers should be produced with deliberation.

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