Elena Kagan is scheduled to appear before the Senate Judiciary Committee on Monday, so now is the time for depressed Supreme Court correspondents to write their depressing articles about how hollow and pointless the upcoming Supreme Court confirmation hearings will be. After which we will pack up our laptops, our notepads, and our small silver flasks, and plod off to cover them again. This year's festivities are particularly rich with irony, as the nominee herself has beaten us to the punch, having predicted 15 years ago that her hearing would be a hollow, pointless sham.
Kagan's sharp review of Yale law professor Stephen L. Carter's 1995 book, The Confirmation Mess, has gleaned some media attention because of her complaint that confirmation hearings, and especially Supreme Court confirmation hearings, have become—as she puts it—a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." This puts her in the awkward position of having to either repeat those platitudes and anecdotes or fail to be confirmed altogether.
What Kagan advocated in that law review article is what everyone but the current Supreme Court nominee always says they seek in a confirmation proceeding: a return to "the famous national seminar on constitutional law" (Carter's words) that was the once-in-a-lifetime Robert Bork hearing. But whereas Carter's book bemoaned a political climate in which the brutal nastiness of the Bork hearings had become possible, Kagan celebrated the dizzying pedagogical heights those hearings achieved. "Constitutional law became, for that brief moment, not a project reserved for judges, but an enterprise to which the general public turned its attention and contributed," she wrote. In short, the Bork hearing was substantive, it was nuanced, and everyone came away grateful for the edifying national conversation about the constitution—everyone, that is, but Judge Bork, who, upon openly discussing constitutional philosophy, was not permitted to touch the Constitution with a 10-foot pole.
Of course, nobody expects nominee Kagan to fulfill the expectations of reviewer Kagan and turn her own hearing into a national seminar on anything at all. Indeed, Kagan herself, cleverly deconstructing the non-answers and evasions offered by then-nominees Stephen Breyer and Ruth Bader Ginsburg at their hearings, asked: "Who would have done anything different, in the absence of pressure from members of Congress?" The interesting fight between Carter and Kagan was that he argued for a more civil confirmation process, while Kagan argued for a much tougher, more probing one.
Senators who chide Kagan next week for shying away from a tough confirmation process will have entirely missed the point of her article, however. She isn't averse to tough scrutiny. She's simply ensured that her own background defies it. In the decade-and-a-half since Kagan looked at the confirmation process, having endured the Roberts, Alito, and Sotomayor hearings, she would probably agree that matters have only gotten worse. In response to a broken system, the subsequent nominees have become more opaque, the conversation more one-sided. As if, in response, Kagan has made herself into the perfect nominee.
Since Kagan penned her critique of the confirmation mess, several things have occurred that she may not have anticipated. The language used to describe the ideal judge has been refined into even greater nothingness. While in her law review article, for example, she poked fun at Justice Clarence Thomas' assurance that when it came to preexisting legal views, he had " 'stripped down like a runner' and so had none to speak of," it is now an article of faith among judicial nominees that their legal views are irrelevant. Judges exist just to mechanically apply facts to the law in every case. To the extent that a hearing's purpose is to confirm that a future justice has any brain at all, that brain is pressed into service only to recite from memory the holdings of past cases and to reassure the senators of the nominee's respect for precedent. A Bork-like brain has become an object of permanent scorn since the Bork hearing.
In her review, Kagan also overstates the value of a judicial heart. She thus echoes Carter's observation that "most of the cases the Supreme Court hears require more than the application of 'mundane and lawyerly' skills; these cases raise "questions requir[ing] judgment in the finding of answers, and in every exercise of interpretive judgment, there comes a crucial moment when the interpreter's own experience and values become the most important data." Sen. Jeff Sessions will surely ask Kagan what she could possibly have meant when she wrote that "it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value."
That's the kind of charming candor one used to be able to get away with in discussions of the judicial craft. But as Justice David Souter recently noted, the new orthodoxy is that a justice's own "experiences and values" have no place whatsoever at the high court. Experiences and values are the same as biases. Just ask the newest justice, Sonia Sotomayor, whether her experiences and values would ever infect her judgment. (Senators did. She said "no.") Kagan's suggestion that there is some space in the confirmation process in which to probe the judicial heart seems almost quaint today. A judge with a heart is even more terrifying than a judge with a brain.
Of all the unjust criticisms of Kagan, the most unjust is that she is a soulless careerist with no moral core. Reading Kagan's review of Carter's book, one is struck by her political bravery—taking random personal whacks at Justices Scalia, Thomas, Ginsburg, and Breyer. That's the same kind of personal bravery you find in her Clinton-era memos. When it comes to tactics, people, and politics, Kagan is uncommonly forthright and direct. She just doesn't say what she plans to do with all that forthright directness once she's seated at the court.
Kagan's scholarly approach is to try to synthesize and reframe. She has a sharp ear for process and a strong voice for moving forward, for reaching a decision. What she seems to do quite naturally—listen to all sides and then recast the debate—is exactly what will make her an effective justice. The lingering question is whether she can be a brave one.
The one thing Kagan has done perhaps most effectively in her career—as an academic, as a political adviser, and as a dean—has been to avoid doing or saying anything so terribly controversial that she would become another Robert Bork. She has managed to avoid, quoting Carter, being cast as one of the "radical monsters—far outside the mainstream of both morality and law." Her critics on both the right and the left suggest this makes her an empty shell. But re-reading her 15-year-old thoughts on the silliness of the confirmation process, I suspect it just makes her very smart. Political and ideological bravery are admirable qualities, yes. But they are also career-enders. Back in 1995, Kagan already understood that the journey to the Supreme Court has become the mirror image of a trip to Oz. You need to lose the heart, the brain, and the courage before anyone lets you in the door.
So it's interesting to contrast Kagan's intellectual review of Carter's book with her own professional response to it. Even as she was critiquing Carter's ideas, she was also making them obsolete. She was calling for a deep and substantive review of a nominee's jurisprudential philosophy just as she was managing to bury her own. She was pushing for philosophical transparency just as she was becoming philosophically unknowable. And she was celebrating the national seminar of the Bork proceedings just as she was guaranteeing that she would never participate in anything of the sort. Kagan has fashioned herself as the first post-Confirmation Mess justice, and, quite frankly, she is the last person we should blame for that. As Kagan herself asked of the justices who did whatever tap-dancing necessary get confirmed before her, "Who would have done anything different?"