Kagan Won’t – and Shouldn’t – Disclose Views on Issues

Newsweek

Republican Sen. Charles Grassley of Illinois says he will press Elena Kagan at her confirmation hearing to be “as forthcoming” about her views of specific issues as she once argued other Supreme Court nominees should be. Many commentators have also called on her to disclose her specific views. But Kagan will not do that. And she should not.

Her current role has no doubt given Kagan a very different point of view than when she complained in a 1995 book review that confirmation hearings had become “a vapid and hollow charade.” Indeed they have–but not because nominees refuse to state their views on specific issues.

Supreme Court confirmation hearings have become a vapid and hollow charade because too many senators spend their time posturing for the cameras and too many nominees insist disingenuously that judging requires little more than mechanical application of law to facts. Kagan called on senators in her 1995 book review to demand nominees’ “views on particular constitutional issues…involving privacy rights, free speech, race and gender discrimination, and so forth.” Such demands are understandable. Supreme Court nominees seek life tenure with no accountability to voters, ever, in a position with far more power than any senator has. Shouldn’t we know what they think about the issues that they will decide?

Well, no. The case against nominees’ disclosing their views about specific issues is overwhelming. That’s why no Supreme Court nominee has ever discussed his or her views extensively, with the exception of Robert Bork in 1987. And Bork did so only because he would have been doomed had he refused to explain his fiery public attacks on dozens of major constitutional precedents.

Bork was, of course, doomed anyway. The reasons for reticence, in ascending order of importance, are these:

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