What To Expect During Kagan's Nomination

Posted: May 09, 2010 10:52 PM
She's the President of the biggest good 'ole boys club in the nation. Her homosexuality is one of the worst-kept secrets in the judiciary. She's a terrorism-fightin', gay-rights-tootin', politically saavy....well... that's about it. We don't know what else she is. Because she hasn't written all that much. But we do know she's 1) in favor of calling the war on terrorism a war, 2) against DADT, and 3) strongly against having military recruiters on campus.

We also know, 4) that she's taken a position in favor of Supreme Court nominees having to disclose much more than they normally during their hearings, which makes the other stuff just a little more interesting. After all, if we only know 4 things about her, and one of those things is that she believes we should know more, the confirmation hearings should be nothing short of spectacular, right? Well, maybe. Here's Jonathan Adler on Volokh:
In “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995), [Kagan] argued that probing questions about a nominee’s views were not only appropriate but essential.  According to Kagan in 1995, the Senate should ask — and demand answers — about both a nominee’s “broad judicial philosophy” and “her views on particular constitutional issues” including those “the Court regularly faces.”  This article will make it particularly difficult for Kagan to avoid providing more detailed answers than have other nominees in the past, and will give Senate Republicans an additional line of attack — and if she refuses to go along she could even be accused of a “confirmation conversion.”
That could be cool, but it's unlikely. As soon as any Supreme Court nominee gets before Congress, they immediately go into stealth mode. That's protocol, and that's tradition. And if Kagan is master of anything, its protocol and tradition. You don't become head of Harvard Law, and get a nomination to the Supreme Court, without following those things. So while Kagan might have led to fireworks in the Senate, I think she'll amount to a lot of what previous confirmation hearings have been — interesting, but in the end, another rhetorical tap dance.

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