Supreme Court nominee Elena Kagan must be psychic. Fifteen years ago she called the nomination hearings “a vapid and hollow charade.” Last week, she ensured that her prediction came true. After more than nine hours of questioning, we still lack critical insights into how Justice Kagan would approach some of society’s most pressing questions before the court — let alone the slightest whiff of a judicial philosophy that would inform her decision making.
Since Ms. Kagan has no actual judicial experience, one can’t help wondering if the nomination hearings were anything other than a political quiz show — they served the purpose of testing Ms. Kagan’s ability to perform under pressure, but they told us previous little about how she might approach the basic rights that we associate with happiness.
This should be at least somewhat disconcerting to the American people. The Supreme Court is unique in that it serves to resolve disputes that have divided circuit judges. Perhaps more than any other judicial position, Supreme Court justices must rely on their sense of equity to resolve issues that, by definition, have no clear legal answer. If we are going to give someone a life appointment to such a position, shouldn’t we at least get a whiff of his or her beliefs?
With Ms. Kagan, we have no idea how she will apply the law because she has no judicial experience and very little legal experience. Unlike other recent Supreme Court nominees, Ms. Kagan has no written decisions to parse. She is an academic and a political adviser. For the most part, we have only her time as dean of the Harvard Law School and her time in the Clinton administration to glean insight into her thinking.
Regarding the latter, Senate Republican leader Mitch McConnell of Kentucky questioned Ms. Kagan on a series of notes that she had written while serving as a political adviser in the Clinton administration. On one page, Ms. Kagan scribbled that a proposed ban on soft money donations “affects Repubs, not Dems!”
Mr. McConnell rightly seized on these documents to question whether "Ms. Kagan’s work in the Clinton White House reveals a woman who was committed to advancing a political agenda — a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal." For this, Mr. McConnell was savaged in most liberal news outlets.