Current Solicitor General Elena Kagan is currently going through this process. One big issue is her current unwillingness to discuss specifics of her opinions about previous or current or possible future cases that could come before the court. The reason it is so controversial is that in 1995 she wrote:
“[Supreme Court confirmation hearings have taken on] an air of vacuity and farce” because there was no meaningful discussion of legal issues. (Now she herself is avoiding just those discussion issues.) She continued that declining to talk about a case that may someday come before the court was something that should come to an end in confirmation hearings, that everyone should engage in a much more open talk about the legal issues. Now she is declining those very conversations. And it sounds like Republican senator Orin Hatch of Utah counseled her to do that:
“I basically said to Senator Hatch that he was right, that I thought that I did have the balance a little bit off and that I skewed it too much towards saying that answering is appropriate, even when it would, you know, provide some kind of hints. And I think that that was wrong. I think that – in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases – you know, to grade cases – because those cases themselves might again come before the court.”
So, she changed her mind. And it sounds like everyone is ok with that, because before she was more about keeping things real, and open, and honest, and now she is more about making sure she gets confirmed. So be it for now. Maybe she will change her mind again- I don’t know.
The other major issue that she is dealing with is her brief ban on military recruitment while an administrator at Harvard. She had to answer a lot of questions about whether she was punishing the military for the “Don’t ask, don’t tell” policy when it was something that they don’t have the decision-making power to change. She retorted that she actually oversaw a rise in military recruitment while in charge of Harvard, and that the move her attempt to try and see how to correlate what Harvard’s founding principles were with what the responsibility of any institution that receives Federal money to allow the military complete access to their grounds.
In the end, neither of these are going to keep her out of the Supreme Court. What they will do is get her a lot of hard questions, but that is good practice for being a judge.
Photo Credit: arcticpenguin