My task this week is to write a column on how criminal justice issues are likely to play out at the Elena Kagan confirmation hearings, and how her expected confirmation will tilt the balance between the rights of the accused and the government's power to police. The answer to the first question is easy: As with the Sonia Sotomayor hearings, it's unlikely that criminal justice issues will get much attention at all. There's little difference between the Democrats and Republicans on these issues, which means there aren't any political points to be won by grandstanding. That's bad enough. But the answer to the second question is more disturbing still. The confirmation process has morphed into political theater designed to keep us as much in the dark about prospective Supreme Court nominees as possible. And according to Beltway conventional wisdom, that's exactly the way it ought to be.
You'd think one might get a feel for how Kagan will come down on hot-button issues by looking at her time in the Solicitor General's office. Shorty after President Obama announced her nomination, I did just that, noting that during her tenure, her office argued that states should be allowed to deny post-conviction DNA testing even when it could establish innocence; argued that prosecutors should have absolute immunity from lawsuits even when they manufacture evidence that results in the conviction of an innocence person; and argued for an expansive power to censor material the government deems offensive. Salon's Glen Greenwald wrote extensively on how Kagan's office argued for further expansion of executive power on issues like extraordinary rendition, executive privilege, state secrets, and indefinite detainment.
But Tom Goldstein at SCOTUSBlog cautioned that we shouldn't judge Kagan by her tenure at the Office of Solicitor General. The purpose of that office is to defend the law, and to defend the policies of the current administration. Some of those cases were also holdovers from the Bush administration and by tradition new administrations tend not to change course from prior administrations once a case has worked its way up to the federal appeals courts. Both of those assertions are largely true—and problematic. I've never quite understood why we'd have an office whose purpose was to defend all federal law, even those laws the president personally believes are unconstitutional.
We can say that she probably took the job knowing where her boss generally came down on these issues. It's safe to say that Obama interviewed Kagan for the job. And it seems likely that they discussed his priorities for the position. He obviously was comfortable enough with her positions to hire her, and she obviously was comfortable enough with his to accept. That, or Kagan was willing to take a powerful job that would require her to argue in favor of laws and policies that she believes are unconstitutional. If she did have objections to any of these policies, they weren't strong enough to force her to resign instead of arguing that the highest court in the land should give its imprimatur to laws and policies she found unconstitutional.
But if we're not allowed to ascribe to Kagan the arguments she made before the Supreme Court as Solicitor General, it would at least be helpful to know on which cases she might have disagreed with the Obama administration, and in particular those cases where she may have voiced her disagreement. But we aren't allowed to know that either, thanks to executive privilege. I suppose a senator could ask her this question during her confirmation hearings this week. I'm certain she won't answer it.
But Kagan also served as a legal adviser in the Bill Clinton administration. There, she argued against remedying the sentencing disparity between crack and powder cocaine, and took a hard line against medical marijuana. Can we judge her on that advice? Kagan's defenders say no. Her job there was in part to recommend legal positions for the administration with an eye toward the political climate at the time. So, we're told, we shouldn't assume these are positions she actually believes, though if she doesn't believe them we're once again looking at someone who for the sake of politics was willing advance policy positions she didn't personally believe. But if pressed by Republicans on the point, Kagan can merely defer to Supreme Court Chief Justice John Roberts. During his confirmation hearings about memos he wrote as an adviser in the Reagan administration, Roberts replied that he'd likely approach those issues differently as a Supreme Court justice than he would as a legal adviser whose client was the federal government.
If we can't use Kagan's time in the Solicitor General's Office or the Clinton administration as possible indicators of how she may rule on the Court, we're left with her tenure as the dean of Harvard Law School and the 14 articles she wrote for law journals. Strangely, this means we're supposed to judge Kagan not by the decisions she made and the positions she took when she actually wielded political power, but by the positions she took and decisions she made that had little to no effect on public policy. And perhaps not even then. As prominent legal blogger and UCLA Law Professor Eugene Volokh explains, Kagan's law review articles were more analytical (a good thing in a law review article, Volokh explains), didn't stake out clear positions, and probably aren't reliable indicators of how she'd rule as a Supreme Court justice.
Even all of this would be tolerable if Kagan were to clearly articulate her judicial philosophy this week. But that isn't likely to happen. Like her recent predecessors, Kagan is expected to play the cipher, offering only vague platitudes about the rule of law, the Constitution, and equitably applying the law. Kagan is aspiring for a promotion to one of the 10 most powerful positions in the U.S. government, where she'll likely serve for decades, and where she'll make profoundly consequential rulings on the balance between government power and individual rights. Yet we're not permitted even the slightest glimpse into what values and guiding principles might influence those decisions.
There is a school of thought that says elections matter, and with winning a presidential election—particularly winning one as clearly as Obama did—a president can expect to have his nominees confirmed, provided they're qualified and hold positions that fall within the parameters of reasonable public debate. I don't buy that. The Constitution delegates to the president the power to nominate, not the expectation that the Senate will confirm his nominations.
But even if you buy this line of thought, on many of the issues Kagan is likely to hear as a Supreme Court justice—particularly issues related to executive power and the war on terror—President Obama has done a 180 on the positions he advocated back when he was a candidate for the presidency. That is, if "elections matter," these weren't the positions that won the last election. And Elena Kagan is the person Obama the president hand-picked to argue his broken promises before the Supreme Court.
To be fair, this column isn't about Elena Kagan so much as it's about how the evolution of the confirmation process and the federal government's increasing hostility to transparency keeps the public ever more in the dark, even on matters as important as the judicial philosophy of a Supreme Court nominee.
So let's make this more about Kagan. It's been well-reported that Kagan has strong opinions on the confirmation process. She even agrees with me. In a review of Stephen Carter's book A Confirmation Mess, Kagan lamented that the confirmation process has devolved "to a place where comment of any kind on any issue that might bear in any way on any case that might at any time come before the Court is thought inappropriate." She added, "what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate. . . What has happened is that the Senate has ... let slip . . . the legitimacy and the desirability—of exploring a Supreme Court nominee's set of constitutional views and commitments."
Kagan now plans to decline comment on any issue that might bear in any way on any case that might come before the Court. She'll do her absolute best to prevent any serious substantive inquiry into her beliefs, and she'll make it clear that it's neither legitimate or desirable for the Senate to insist on exploring her set of constitutional views and commitments. If we aren't permitted to look at her record in public office as an indication of how Kagan might balance government power with individual rights, we're left to judge her on this: Kagan recognizes that the confirmation process is a charade designed to keep information away from the public, and to prevent the public from forming an informed opinion about who will sit on the Supreme Court.
And she's chosen to participate in it anyway.