Elena Kagan Senate Vote: The Confirmation Process Isn't Broken

Delivering on predictions, the Senate has confirmed Elena Kagan by a vote of 63-37 to become the fourth woman ever to serve on the Supreme Court. Meanwhile, UCLA constitutional law professor Adam Winkler defends the Kagan hearings.

With Elena Kagan’s nomination to the Supreme Court going to the full Senate for a vote Thursday, once again we’re bombarded by moaning about how the confirmation process is “broken.” Kagan, despite her own characterization of the confirmation process as “ a vapid and hollow charade” years ago, made it through her hearings without engaging in a profound, substantive debate about her jurisprudential philosophy or giving us any real sense about how she’d vote on the controversial issues of the day. The result of the over-politicized hearings was that we witnessed little more than kabuki theater and everyone from conservatives to liberals insists the process needs to be radically changed.

They are all wrong.

Senators don’t truly want to know about Kagan’s approach to judging. They want to know how she’ll rule on the controversial issues of the day.

When people say that the confirmation hearings should lead the senators and the nominee to join together in a serious, thought-provoking discussion about the nature of judicial review and the proper way for judges to decide cases, I am struck by a question: what planet do these people live on? When do we ever see elected officials engage in that sort of careful, thoughtful dialogue in an edifying way?

The truth is our political process strongly discourages this type of engagement. The nominee has no incentive to describe her philosophy, as is often noticed. But the senators are really the ones to blame. If the nominee said more, they would push her to say what her philosophy meant for the political issues they use to score points with their constituencies back home. If the senators tried to discuss judicial philosophies, they would inevitably resort to the same platitudes and clichés they rely on when discussing almost anything. Some of them can’t even seem to ask an intelligent follow-up question, yet we want them to delve into the intricacies of judicial philosophy?

Consider Chief Justice John Roberts’ confirmation hearings, when he wowed the senators by analogizing a Supreme Court Justice’s job to an umpire calling balls and strikes. Such simplistic notions diminish rather than enhance the public’s understanding of how Justices make difficult decisions. Figuring out what ambiguous constitutional phrases like “ equal protection” and “ due process” mean is a lot more complicated than determining if a thrown ball crosses the plate above the batter’s knees.

My skepticism of the senators was only enhanced in the Kagan hearings by their dismissive and disrespectful portrayal of the late Thurgood Marshall, who was derided for his “activist” views. Excuse me, but Marshall will go down in history as one of the most important and influential people in American constitutional history. Without his “activism,” we might still be living with Jim Crow. If this is how one of America’s constitutional legends will be mischaracterized, I’d prefer if the senators keep their politically grubby hands off questions of judicial philosophy.

Senators don’t truly want to know about Elena Kagan’s approach to judging. They want to know how she’ll rule on the controversial issues of the day, like same-sex marriage and health-care reform. But revealing this information is inappropriate—and contrary to the original understanding of the Founding Fathers. They wanted to do away with advisory opinions because they thought live controversies, with real, not hypothetical, facts made for better decision-making.

Even the politicization of the process is salutary. Every nominee’s record is closely examined for controversial statements or ideas, meaning some qualified people are excluded. But the consequence is that anyone who does make it through the process is likely to have more or less mainstream views. Radicals whose jurisprudence would likely take us too far left or too far right need not apply. This is a net positive: the Court should stay within the broad mainstream of American political thought.

During Kagan’s hearings, Senator Jeff Sessions whined that he couldn’t tell from her answers whether she’d vote more like Chief Justice John Roberts or Justice Ruth Bader Ginsburg. That, however, is exactly how it should be.

Adam Winkler is a constitutional law professor at UCLA.