By: Arlen Specter
Supreme Court nominee Elena Kagan did little to undo the impression that nominating hearings are little more than a charade in which cautious non-answers take the place of substantive exchanges.
In this, she was following the practice of high court nominees since Judge Robert Bork. But her non-answers were all the more frustrating, given her past writings that the hearings were vacuous and lacked substance. She accused Justice Ruth Bader Ginsburg and Stephen Breyer of stonewalling, but then she did the same, leaving senators to search for clues on her judicial philosophy.
Her hearings showed an impressive legal mind, a ready humor and a collegial temperament suitable to the court. But they shed no light on how she feels about the court's contemptuous dismissal of Congress' "fact-finding" role, its overturning of precedent in allowing corporate political advertising, and the expansion of executive authority at the expense of congressional power.
She offered no meaningful observations on U.S. vs. Morrison, in which the court overturned the Violence Against Women Act, blaming Congress' "method of reasoning," notwithstanding a "mountain of data assembled by Congress" demonstrating "the effects of violence against women on interstate commerce" noted in Justice David Souter's dissent.
She offered no substantive comment on Citizens United, in which the court reversed a century-old precedent by allowing corporations to engage in political advertising. Justice John Paul Stevens said in dissent that the court showed disrespect by "pulling out the rug beneath Congress," which had structured the campaign-finance reform bill, McCain-Feingold, on a 100,000-page factual record based on standards cited in a recent Supreme Court decision.
Likewise, she avoided taking sides in the court's expansion of executive authority, declining comment on the historic clash posed by the Foreign Intelligence Surveillance Act and the president's warrantless wiretapping authorized under the Terrorist Surveillance Program.
Despite repeated questioning, Kagan refused to comment on the court's refusal to resolve a contentious dispute involving the Sovereign Immunity Act and the Obama administration's foreign policy. Survivors of 9/11 victims sued Saudi Arabia, Saudi princes and a Saudi-controlled charity with substantial evidence that they had financed the 9/11 terrorists. The Obama administration persuaded the court not to hear the case, arguing that the Saudi Arabian conduct occurred outside the U.S.
On one controversial issue -- the question of whether to televise open Supreme Court proceedings -- Kagan was candid, stating that she welcomed TV in the court and, if confirmed, would seek to convince her colleagues on the bench. "It's always a good thing," she said, "when people understand more about government, rather than less. And certainly, the Supreme Court is an important institution and one that the American citizenry has every right to know about and understand."
Her testimony recognized that the court is a public institution that should be available to all Americans, not just the select few who can travel to Washington. A recent C-SPAN poll found that 63% of Americans support televising the Supreme Court's oral arguments.
Given the fact that the court decides all of the cutting-edge questions -- a woman's right to choose, death penalty cases for juveniles, affirmative action, freedom of speech and religion -- public demand for greater transparency should come as no surprise. When 85% of those polled think the Citizens United case expanding corporate spending in politics was a bad decision, one can conclude they want to know why the court decided as it did.
On balance, Kagan did little to move the nomination hearings from the stylized "farce" (her own word) they have become into a discussion of substantive issues that reveal something of the nominee's judicial philosophy and predilections.
It may be understandable that she said little after White House coaching and the continuing success of stonewalling nominees. But it is regrettable. Some indication of her judicial philosophy may be gleaned by her self-classification as a "progressive" and her acknowledged admiration for Justice Thurgood Marshall. That suggests she would uphold congressional fact-finding resulting in remedial legislation and protect individual rights in the congressional-executive battles.
The best protection of those values may come from the public's understanding through television of the court's tremendous power in deciding the nation's critical questions. In addition to her intellect, academic and professional qualifications, Kagan did just enough to win my vote by her answers that television would be good for the country and the court, and by identifying Justice Marshall as her role model.