Does Supreme Court nominee Elena Kagan have an axe to grind with one of the high court’s nine sitting justices? In a phone call with Democratic Sen. Arlen Specter today, Kagan repeated her criticism of the nomination process as an empty charade, according to Specter – and then singled out one justice for not having supplied “appropriate” replies to senators’ queries during the confirmation process.
“She stood by the word ‘charade.’ And she identified a specific justice who she thought was not appropriate in responses,” Specter told NBC’s Ken Strickland. “I’m not going to tell you who it was, but I’m going to take a look at that record in preparation for the questioning.”
According to The Hill, Specter said the justice Kagan was referring to was “recently appointed.”
So who is Kagan talking about, and why is she criticizing a potential colleague? Kagan’s views on the emptiness of judicial nominations are long-standing: She first called into question the nomination process in a 1995 University of Chicago Law Review article, which she wrote after serving as a staffer during the Ruth Bader Ginsburg hearings. Ginsburg invoked the rule that she didn’t have to answer questions on any issues that could come before the court because it could damage her objectivity. Kagan argued that no nominee had been candid in characterizing his or her actual beliefs since the combative hearings that rejected Reagan court nominee Robert Bork because of his alleged “ideological” approach to interpreting the law.
In that piece, she called out justices Ginsburg and Stephen Breyer – both Clinton appointees – for dodging tough questions. “I suspect that both appreciated that, for them (as for most), the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence,” she wrote. (Here’s a link to the article.)
It’s possible that the recently appointed justice she criticized to Specter could be Sonia Sotomayor, but that seems unlikely, both because it would be exceptionally impolitic for Kagan to lay into a fellow Obama nominee, and since Sotomayor wasn’t especially evasive during her confirmation questioning, particularly on hot-button issues such as abortion and gun rights.
Kagan’s likelier target, then, would be one of the two justices George W. Bush nominated, Samuel Alito or Chief Justice John Roberts. Both were criticized for evasive answers to questioning during their hearings.
A Washington Post editorial said Alito offered only “platitudes” when asked about executive power and that the hearings were “less illuminating than one might have hoped.”
Peter Shane, a professor at Ohio State University’s law school, wrote that Alito showed “resolute determination to say relatively nothing that would shed light on his constitutional philosophy. My personal favorite moment in this was his insistence that, after 15 years on the bench, he had not given sufficient thought to the question to opine whether Congress could eliminate all federal court jurisdiction over First Amendment cases.”
Few critics attacked Roberts for evading the substantive issues raised by his senate questioners. But he consistently portrayed himself as a humble, modest judge with a reverence for judicial precedent. Kagan, who as solicitor general argued against the controversial Citizens United decision, which allowed corporations to influence campaigns with unlimited funds, may think Roberts misrepresented his philosophy, since Roberts’ critics now contend that in Citizens United he endorsed an activist approach that overthrew long-standing legal precedent.
One could bolster the admittedly circumstantial case for Roberts as Kagan’s target by noting the other exchange Specter mentioned today. “We talked about the Citizens United case, and she said she thought the court was not sufficiently deferential to Congress,” he said.
One senator looking for Kagan to break recent confirmation precedent, ironically enough, will be Specter himself. He voted against confirming her as solicitor general last year because he says she wouldn’t answer some of his questions.